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The FCC and Local TV

The FCC and Local TV

The FCC's right to levy indecency fines against television broadcasters could have a chilling effect on local stations.

Topics for this story: Opinion, Law, Politics & Public Policy
May 8, 2009 |
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Editor's Note: Stuart Benjamin is a professor at Duke Law School and co-author of "Telecommunications Law and Policy."

Last week the U.S. Supreme Court upheld the Federal Communications Commission's right to levy indecency fines against television broadcasters for airing expletives, even those uttered in the din of a noisy locker room after a big win or tough loss.

While this may not sound like much, the chilling effect this could have on local TV is substantial. Many stations simply will not be willing to risk being fined thousands of dollars because Coach Mushmouth, upset at that night's officiating, dropped the "F bomb" on live TV.

This is the latest step in the demise of local TV. Local affiliates, like their newspaper brethren, are losing their customer base. Web sites and cable providers that cover local issues siphon off viewers and advertisers. Coverage of live hometown events has been a lifeline for local broadcasters in the face of declining viewership.

But because many local stations can't afford tape-delay systems as national networks can, they are halting coverage of live local events for fear of these FCC indecency fines. The problem, as Justice Stephen Breyer noted in his dissent, is that the FCC's indecency policy "places all broadcasters at risk when they broadcast fleeting expletives, including expletives uttered at public events."

Is this a bad thing? Many telecommunications policy analysts, myself included, have long favored the phase-out of local broadcasting for fiscal and technological reasons.

Only 14 percent of households rely on over-the-air television broadcasting (86 percent subscribe to cable or satellite). The government could reclaim and auction the spectrum used by broadcasters -- as it has auctioned most other frequencies -- and use a small fraction of that money to subsidize cable or satellite for those who cannot afford it. The reclaimed airwaves could then be opened to other uses that would allow for new and enhanced cellular and wireless Internet services on newly plentiful frequencies.

Until recently, reclaiming the airwaves seemed unlikely because the FCC, ironically, had long emphasized the importance of helping local broadcasters. But more recently the FCC has focused on indecency -- ruling that it can subject a broadcaster to fines in the tens of thousands of dollars for each spontaneous and fleeting "f-bomb." Last week the Supreme Court upheld the FCC's right to do this.

As a result, viewers who want to see live coverage of a contentious city council meeting, or (more likely) a celebration of a local sports team's victory, might have better luck with a locally oriented Web site than with their local broadcaster.

This issue is not set in stone. The Supreme Court did not rule that the FCC's policy was consistent with the First Amendment; the courts still have to address the argument that there is no basis for lessened First Amendment protection of broadcasters. But as matters stand right now, your local television broadcaster has a new disincentive to airing live local events -- giving you less reason to watch local broadcasters.

Maybe the FCC's revulsion at the "f-word" can achieve what fiscal and technological arguments could not.

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