At Congress’s direction, FCC inquires broadly about content-blocking technologies
When Congress tells the FCC to do something, the FCC has no choice: it’s got to follow orders. Back in December, Congress told the FCC to start an inquiry into “advanced blocking technologies and existing parental empowerment tools” so, sure enough, that’s what the FCC has done. On March 2 the Commission released a Notice of Inquiry just like it was ordered to.
The law that got this started – the Child Safe Viewing Act of 2007, which was signed by the President on December 2, 2008 – was not a model of specificity or precision. It directed the Commission to “initiate an inquiry to consider measures to examine”, in effect, the entire range of “blocking technologies” which might be available to “improve or enhance the ability of a parent to protect his or her child from any indecent or objectionable video or audio programming, as determined by such parent, that is transmitted through the use of wire, wireless, or radio communication.”
Gamely attempting to comply with that near-infinite mandate, the Commission is now seeking comment on content-blocking generally.
It wants to know about the mundane and totally yesterday V-chip and program ratings system – can they be improved? can parental awareness be increased? It wants to know whether other existing technologies might be preferable to the V-chip for blocking broadcasting. Looking ahead, the FCC asks about possible parental control options for satellite- and cable-delivered content, and wireless-delivered content, and even game consoles and DVD players which generally display only content which is inserted into them by the owner.
The Commission also suggests that it might be appropriate to impose ratings on commercials and foreign language content. And there’s ever a hint that it might be good to expand ratings categories to spotlight programs that “glamorize smoking, alcohol abuse or illegal drug use”. Interestingly, while Congress referred in the Act only to “indecent or objectionable” programming, the Commission expands the targeted programming to include the “inappropriate” and the “offensive”. (These four adjectives may all be synonymous, but we really can’t say for sure, since the Commission hasn’t bothered to define them – including “indecent”, a term which has lurked around FCC jurisprudence for decades without a clear and useful definition.)
This is a sprawling inquiry with vast Constitutional implications. Its sole focus is technology for controlling content, a job which the First Amendment has, with very limited exceptions, taken out of the government’s hands. But Congress didn’t bother to say anything about that pesky Constitution in the Child Safe Viewing Act, and the Commission has dutifully followed suit in the Notice. What Congress did say is that the FCC has to complete its inquiry and submit its report to Congress by August 29, 2009 – so don’t count on the comment deadlines being extended. (Those deadlines, by the way, are April 16 for comments and May 18 for replies.)
While it might appall some that the FCC’s notice fails to address, even in passing, the Constitutional implications of the inquiry, that’s really not its job. The FCC was told to do something and, like the Light Brigade, theirs not to reason why. Still, it would be comforting to have somebody, anybody, in the chain of command acknowledge that governmental involvement in content control, even for assertedly benign and neutral purposes, is a dangerous thing. Instead, we are treated to considerable blather about how parents need governmental assistance in raising their children – including, apparently, content control tools to help parents keep their kids on the straight and narrow.
Curiously, neither Congress nor the FCC happens to have mentioned the most obvious “parental empowerment” tool of all: the on/off switch.