The Federal Communications Commission was once a fairly dry and dusty Washington assignment, a bureaucratic outpost almost exclusively concerned with the technical specifications that govern mass media: frequencies, power allotments, television scanning rates, etc. Slowly and steadily, however, the FCC has been dragged into a high-profile position at the heart of a raging cultural battle over morality in the media and in American society in general. Through a combination of statutes and court decisions, the FCC's indecency jurisdiction is limited to broadcast media: television and radio. The FCC does not have the ability to punish indecency on cable television, satellite radio, or the Internet, and as a result, has little direct impact on the adult industry (and particularly the Internet sector).
However, there are at least two good reasons to pay attention to the recent change in FCC leadership: First, a number of legislators are talking about drafting legislation that would extend the FCC's jurisdiction to other types of media, including the Internet. (There is some legitimate debate, however, about whether such legislation would be constitutional.) Second, as we saw throughout 2004, the FCC helps set the tone for how sexual material in our country is viewed. When the FCC is on the march, it encourages the passage of restrictive legislation, emboldens prosecutors, and generally has a chilling effect on media as a whole.
Indecent legacy
For the last five years, the FCC has been chaired by Michael Powell, the son of former Secretary of State Colin Powell. For much of his tenure, Powell could best be described as a reluctant indecency warrior. An avowed deregulationist, Powell's initial instinct was to let the marketplace deal with the decency issue; although the FCC's indecency fines did rise steadily during Powell's chairmanship (from $48,000 in 2000 to $440,000 in 2003), the Commission rejected the vast majority of the complaints it received. But when his efforts to weaken the rules governing media ownership came under attack in both Congress and the courts, Powell latched onto the decency issue as a way of distracting opponents and bolstering support with social conservatives (many of whom oppose media consolidation because it weakens local choice).
As a result, when Justin Timberlake exposed Janet Jackson's breast in February 2004, Powell was ready to pounce. The FCC had already started to crack down on the more outrageous media personalities (like Howard Stern and Bubba the Love Sponge), but the Houston flash-dance led to an unprecedented level of FCC activity. By the end of 2004, the FCC had assessed nearly $8 million in indecency fines. In the process, the Commission helped boost satellite radio by driving the immensely popular Howard Stern into the welcoming ($500 million worth) arms of Sirius Satellite Radio.
The FCC's crackdown has had little discernable effect on decency in mass media: The most popular television right now is the innuendo- and lacy-panty-laced Desperate Housewives, a show so popular that First Lady Laura Bush riffed on it at the recent Washington Press Corps dinner. And the increase in fines did nothing to boost Powell's deregulatory agenda, which remains mired in various legal and legislative battles. At most, the Year of Fining Excessively may have helped boost Powell's conservative credentials for a rumored run for Congress or governor in Virginia.
Young blood
Two months after Powell submitted his resignation, President Bush announced that he had chosen Kevin Martin, 38, to replace Powell as chair. A North Carolina native and graduate of the University of North Carolina at Chapel Hill, Martin was first appointed to the FCC by President Bush in April 2001. Prior to being appointed, Martin served in the White House as a specialist on telecommunications law, as counselor to the Bush-Cheney 2000 campaign, and as an observer of the recount procedures in Florida. In addition, his wife, Catherine Jurgensmeyer Martin, was formerly on Vice President Cheney's staff and currently works as a special assistant to the president on economic policy. Two years ago, the Martins were described by no less a pundit than William Safire as "the most puissant young 'power couple' in the capital."
Even before his elevation to chairman, Martin had played an influential role on the Commission. Despite having an easygoing demeanor and a reputation for unfailing politeness, Martin has not been reluctant to play regulatory hardball. Although both he and Powell are Republicans and share a general faith in the marketplace, Martin often split from Powell on important votes. In February 2003, for instance, Powell put forward a proposal to remove restrictions on the Baby Bells to increase competition in local markets. Martin joined Democrats in rejecting Powell's proposal, a highly public rebellion that earned him some criticism from Congressional Republicans. Friction between the two also arose over Powell's efforts to ease media consolidation rules to allow greater cross-ownership of television stations and news outlets. Although Martin ultimately voted with Powell, his initial opposition forced Powell to back down from some aspects of his proposal. It will now be Martin's task to see if any of the media deregulation can be saved; it was roundly rejected by the federal courts and sent back to the FCC for reconsideration.
At least some of President Bush's interest in Martin was pragmatic; as a current member of the Commission, his appointment as chair does not require the approval of Congress. However, Martin's substantive credentials for the chairmanship, already solid, have been steadily boosted by his strong stand on indecency. Since his appointment to the Commission, Martin has routinely dissented from FCC rulings in which the Commission found no violation or assessed a minimal fine. He has expressed a much greater willingness to find violations of indecency than the rest of the Commission, and in particular, has argued for more punitive fines. In April 2003, for instance, when the Commission fined Infinity Radio Broadcasting $27,500 for the contents of the "Deminski & Doyle Show" (in which nine callers were asked to describe various types of sexual activity in explicit detail), Martin said that he would have considered the comments of each caller a separate violation. In other cases, he has promoted the adoption of a "per utterance" rule, in which a broadcaster or station would be fined not for a single indecent show, but instead for every instance of "obscene, indecent, or profane" language.
As chair, one of Martin's first acts was to appoint a new chief of the FCC's enforcement bureau, which is responsible for making an initial response to complaints about indecency. He selected Kris Monteith, who previously had served as a deputy bureau chief in the FCC's consumer and governmental affairs office. Monteith is replacing David Solomon,who came under intense fire from Capitol Hill over his October 2003opinion that Bono's use of the word "fucking" at the 2003 Golden Globes was not a violation of the FCC's indecency standards. At the urging of the Parents Television Council, the Commission reviewed Solomon's memorandum and in March 2004, reversed the decision. To Martin's dismay, the Commission chose not to fine NBC and its affiliates, concluding in its opinion that they were not on notice that the word "fucking" constituted "prohibited profanity." It is highly unlikely that Monteith will make the same political mistake.
Conservative kudos
Not surprisingly, Martin's hard line on indecency has been applauded by conservative action groups, a constituency that President Bush is eager to keep energized. Jan LaRue, the chief counsel for Concerned Women for America, issued a statement saying that she had urged the group's members to "flood the White House with calls" in support of Martin. Both the Parents Television Council and the Family Research Council also mobilized their members in support of his appointment.
There is some suggestion, however, that Martin might not move as aggressively on the indecency issue as first thought. At a recent session of the 2005 National Cable Show in San Francisco, Martin declined to say whether he favored extending the FCC's supervision to cable and satellite transmissions. Instead, he said that the decision was one for Congress to make, and that if the cable industry wanted to reduce the likelihood of Congressional action, it should take more aggressive steps to address viewer concerns. In one hopeful sign for the broadcast industry, Martin reiterated his preference for market-based solutions over regulatory action.
Even if Martin is inclined to take a sterner role on broadcast indecency, it is likely to be some time before his leadership is felt. So far in 2005, the FCC has issued six indecency decisions, and in each case, has rejected a finding of indecency. In one instance, the Commission rejected arguments that the Veterans Day broadcast of Saving Private Ryan was indecent, despite the movie's prolific swearing. Shortly thereafter, the Commission concluded that there was no indecency in the much-discussed promotional ad for Monday Night Football, in which Desperate Housewives star Nicollette Sheridan tries to seduce Philadelphia Eagles star Terrell Owens by dropping her towel in the locker room.
The FCC will continue to be in a state of upheaval for the near future, as President Bush must find a replacement not only for Michael Powell but also for recently departed commissioner Kathleen Abernathy. At the same time, Martin is also faced with a slate of highly technical issues, ranging from ongoing implementation of high-definition television to the implications of voice-over Internet Protocol. Although the FCC will continue to come under enormous pressure from conservative political action groups, it is unlikely that the FCC will have a significant and long-term effect on mass media in general and the adult industry in particular.
