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We Control the Vertical - September 10, 2001

By James L. Hirsen, J.D., Ph.D.
contributor to

Some of the major television networks have announced that they are going to compete in a race from the gutter to the sewer this fall season. Decency regulations do exist, but three of the main players have already indicated that they intend to violate the rules.

As The New York Times and NewsMax recently reported, G.E.'s NBC is planning to introduce a character that will use the Lord's name in vain, according to Aaron Sorkin, executive producer of "The West Wing". Such a position has customarily been considered taboo for network TV.

Viacom, Inc.'s CBS stated that its new contribution to American culture would include some generous helpings of crude dialogue, "F" word intact. Other television faire promises to add more unconventional characters and more revealing sex scenes than presented in the past.

Amidst the controversy over content, four major media conglomerates have decided to head to court. What spurs their legal action relates to the recent trend toward the construction of a media oligarchy in America.

In addition to setting decency standards, the FCC controls the size of national broadcasters, audiences and monitors monopoly implications within market areas. Almost simultaneous with network announcements, Viacom, Inc.'s CBS and G.E.'s NBC argued in federal court that the Federal Communications Commission rules, which limit their audiences to 35 percent of American homes, violate the First Amendment. News Corp.'s Fox joined in with the legal action, echoing the same objections. Not to be left out, AOL Time Warner, Inc. was in court to try to remove a restriction that prohibits ownership of a cable operation and broadcast television station that are located in the same market.

Judicial relief as an outcome in these cases is crucial. Viacom, which also owns UPN, acquired CBS last May. The additional collection of CBS television stations caused its national audience to rise to 41 percent. The FCC ordered Viacom to conform to the audience restriction regulation within one year. News Corp. is in a similar position having acquired Chris-Craft Industries in July, extending its broadcast audience to 41 percent.

The media giants are, in effect, saying let us expand our control, while at the same time they are allowing their execs to say let us abandon our responsibility.

Free expression is of inestimable importance to the American system of government and way of life. Limitations that are placed upon speech have typically involved expressions that are not intended to primarily communicate ideas. The classic notion of yelling fire in a crowded theatre, assuming that there is no fire, illustrates this type of expression. Statements that involve slander, fraud, invasion of privacy and infliction of severe emotional distress are further examples of non-protected utterances.

The venue in which the expression is made also comes into play. We recognize that content discussed in a neighborhood tavern may not be suitable to repeat in a kindergarten class.

One such venue that has traditionally been handled differently due to the likely sensitivity of the audience during specified times is the over-the-air broadcast. Federal law prohibits the broadcast of indecent programming over the public, non-cable airwaves. Howard Stern has set records for FCC fines as a result of his program's violation of decency provisions. If we are to have equal protection under the law, stiff fines must be imposed on the networks that follow through on their pledge to substantially lower the broadcast decency bar.

It is always preferable for our society to avoid government interference, if at all possible, when it comes to the free market. But this presupposes that we have an honorable corporate citizenry. If regulations are already in existence, they should be enforced. If these massive media companies now try to seek special favors through the courts, the public must demand that they clean up their respective acts regardless.

It is only through responsibility and self-regulation that broadcast media can maintain their freedom and, more importantly, their integrity.

Reproduced with the permission of . All rights reserved

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James L. Hirsen, J.D., Ph.D.

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