Doorstops and Paperweights

Ted Stevens (R-Alaska), chairman of the Senate Commerce Committee, has come up with what he believes is a brilliant idea. He thinks the FCC should have to the power to hold cable and satellite channels to the same decency standards as over-the-air broadcasters. Rep. Joe Barton (R-Texas), Stevens’ counterpart in the House, agrees. Each plans to propose bills to that end in his respective house of the U.S. Congress. Many of their colleagues, eager to always be viewed as tough on indecency, are ready to sign on to their proposed legislation. Never mind the fact that the courts have struck down similar legislation in the past. Stevens, doesn’t see this as a problem. If he got his wish, Congress would just pass it and then, according to Stevens, "take [the cable and satellite industry] on and let the courts decide."

At the core of Senator Stevens’ rationale is the fact that cable and satellite have become almost as ubiquitous as broadcast TV. Over 80% of all U.S. homes now subscribe to cable or satellite TV. In those homes, Stevens and his cohorts would argue, viewers make little or no distinction between subscription channels and broadcast channels, which are right along side each other on the cable or satellite box. Therefore, he feels that they should all be held to the same standard of decency. On the surface, that sounds like a sensible argument. However, there are three major problems with his proposed legislation.

First, unlike broadcast television, people choose to bring cable and satellite TV channels into their homes. This choice is a private contract between the company and the subscriber, delivered over that company’s equipment. No one is forced to subscribe to cable or satellite TV. In fact, subscribers pay an ever-increasing subscription price for such a privilege.

Most people, except those who live in mountainous and/or rural areas, can receive broadcast channels over the air with a strong antenna. Even those who live in areas where over-the-air channels cannot be accessed with an antenna can subscribe to a very basic package that includes only their local channels and basic cable channels like The Weather Channel, some home-shopping channels, and one or two religious channels. Decency would never be an issue with any of the aforementioned cable channels, so where is their argument?

The argument against regulating premium channels like HBO, which Stevens wants to include in his legislation, should be a no-brainer. These channels do not come with any basic package and are selected and paid for individually by their subscribers.

But what about the basic channels that come along as part of a "classic cable" and/or "extended tier" package? So far, cable and satellite companies have refused to offer them on an a-la-carte basis and the FCC has ruled in their favor on this matter. Therefore, people are paying for channels like MTV, for example, that many find objectionable. Shouldn’t these channels have to abide by broadcast decency standards? No, because people choose to bring these packages of channels into their homes. Now, granted, many of them subscribe to these packages solely because they want access to channels like ESPN, CNN, and Fox News, which are generally not included with the most basic tiers. They couldn’t care less about any of the other channels in the package.

In a perfect world, subscribers could select these channels individually without having to pay for a lot of channels they don’t want. However, the world is not perfect and life is not fair. To soften the blow, cable and satellite operators have provided a way for parents to block their children’s access to channels they deem inappropriate. Regulating indecency on these channels wouldn’t accomplish anything that the parental lockouts couldn’t.

Second, imposing decency on cable and satellite channels would cripple, or possibly kill, an entire industry. In addition, burgeoning IPTV technologies, which would likely be strapped with the same regulations, would be stymied. Think of the damage it would do to the economy. Thousands would be laid off or not hired.

Many people subscribe to cable or satellite TV because they want access to something that is more edgy and is free to go a little further than broadcast TV. That’s the main reason that broadcasters are pushing so hard for decency standards to be extended to cable and satellite. Although they’ve been trying to compete by pushing the envelope with our own programming since the advent of cable and satellite, they know they are at a disadvantage with the good portion of the public that desire programming with more artistic freedom. If cable and satellite TV were suddenly held to the same decency standards as broadcasters, a huge number of their subscribers would pull the plug. Scores of cable and satellite set-top boxes would be reduced to doorstops and paperweights almost overnight.

Third, and probably most important, the regulating of cable and satellite TV would represent a slippery slope toward other, even more serious kinds of censorship. History has taught us that, without strong restraints, governments will stop at nothing to restrict the free speech and expression of their citizens. These restrictions are often based on rather whimsical criteria.

If government entities can get away with censoring material delivered as part of a private contract by means of privately owned equipment, then what’s to stop them from censoring books, videos, newspapers, magazines, and even the internet? The First Amendment, you might say? Well, no, if the First Amendment could be interpreted in such as way as to allow the censorship of cable and satellite TV, our last line of defense would be broken down. Nothing could stop the government, as the flood gates would be opened to just about any kind of censorship they wanted.

Therefore, with the First Amendment having been breeched, we would have a constitutional crisis of monumental proportions. The one that people talked about in reference to Watergate would seem like child’s play by comparison. Video stores, bookstores, and libraries could be busted for carrying indecent material, even if it couldn’t legally be ruled obscene. Websites could be shut down by the thousands for being deemed a bit too risqué. If a government official didn’t like something you wrote in a newspaper, magazine, or book, you could get slapped with a hefty fine or thrown in jail. Now you might think I’m exaggerating a little and that none of this stuff could ever happen in the United States, but would you be willing to take that chance?

Now, with all of that being said, I seriously doubt that this proposed regulation of the cable and satellite TV will become a reality any time soon. It would be better if the legislation would just pass and the courts would strike it down and thus reaffirm the First Amendment. However, that’s not the way I think it will play out. I believe there won’t be enough votes because of constitutional concerns on the part of the majority of legislators, so Stevens, Barton, and company will have to back off for now.

What I suspect, though, is that the decency hawks in Congress will try to use the mere talk of regulation to intimidate cable and satellite operators into practicing more "restraint", as Sen. John McCain (R-Arizona), a likely presidential candidate in 2008, calls it. However, that’s a just a euphemism for "censor yourselves or we still might get back to trying to censor you later." Of course, cowering self-censorship is the most insidious form of censorship there is.