Officer, you should be chasing murderers, not writing me a ticket!

There has been lots of hullabaloo recently in the United States over the Janet Jackson and Justin Timberlake Super bowl controversy, where the two stars showed that their view of open access meant something very different than what regulators mean (or should mean) when they use the term. The controversy shows the prudish nature of American conservatism, and it arguably underscores the age-old argument that television is a vast wasteland. (A topic that Russ has researched and eloquently written about). The matter has become so prudish and so controversial that most news stories censor the Jackson breast when they replay it, The Economist excepted.

But all of the concern associated with the FCC is misguided. While it may seem silly for the FCC to police these things, this is its job, one that Congress requires it to do. It is based on an old, outmoded regulation that differentiates the way the airwaves are regulated (which is by government, where the FCC can regulate content) and wires and cables (where the FCC is prohibited from regulating content in the same way). In most parts of the U.S., there is more than 80% penetration in cable or satellite (satellite is regulated like cable, that is, content-unregulated) and most people can not tell the difference when they are flipping through their stations that channel 5 is an airwave-based FCC station (say, ABC), but channel 23 is a cable, non-content-regulated station (say, MTV). Both come through on cable these days in most homes, and the handheld television remote control that people use to change channels makes no differentiation between FCC-safe material and the less-prudish cable content.

But the law still differentiates.

It is silly to make this distinction. But it is not silly for Chairman Powell or the FCC to make all the fuss that they are over the issue. Understanding this distinction is vital. The FCC is just doing what they have been charged by Congress to do. To become frustrated with the FCC on this point is like yelling at a police officer for writing you a ticket for speeding instead of chasing murderers.

Many police officers have been hired by government to write people speeding tickets. Others investigate murders. Yelling at a police officer for writing a ticket rather than investigating murders will get you nowhere. And essentially, this is all the FCC is doing, for it it has considered writing a ticket within the context of its governmental charge. Yes, it is absurd; but it is what Congress requires them to do, something that Congress did in a multi-partisan manner, over a period of decades, all the way back to the 1934 Act that created the FCC.

As silly as it may seem, the FCC is charged with regulating content in the public interest. What exactly public interest means no one knows, and hundreds law-review articles have been written and many Supreme Court decisions have tried to help clarify this vague term. But unless and until Congress tells the FCC that they do not have to determine whether a breast or an erectile dysfunction advertisement is within the scope of public interest, the FCC will continue to do so, just as the police officer who writes tickets for speeding will continue to do his job.

It is absurd for the government to regulate content over the airwaves and to get all tweaked over a breast. But we can not change that by yelling at the police officer. Instead, we should approach Congress. Doing exactly this helped change the maximum speed laws in the United States from 55 miles per hour on many Interstates to 75 miles per hour. Perhaps we should do the same here.