Why Government TV Content Controls Are Doomed to Fail

Published May 1, 2006

A confluence of social, legal, and, most importantly, technological developments is slowly undermining the ability of legislators and regulators, at all levels of government, to control the nature or quality of media programming.

Content regulation is doomed. The demise of content controls may take many years–potentially even decades–to play out, but signs of the impending death of the old regulatory regime are already evident.

A perfect example of this came in March when the WB television network announced it would be self-censoring several scenes from The Bedford Diaries, a new drama that was about to air on its broadcast television affiliates. The network claimed that in light of a recent FCC decision to impose steep new indecency fines on certain broadcast television shows, it was unsure if its new drama would run afoul of FCC indecency “standards.” So the network will be airing a self-censored version of the show next week.

But here’s what’s really interesting: Before that episode is aired on the WB broadcast outlets, the network has decided to air the unedited version on its Internet site. Anyone could download the uncut Bedford Diaries episode and watch on their PC or portable media device for free. According to the New York Times, “It is the first time a network has offered on another outlet an uncut version of a program it has been forced to censor.” Needless to say, it won’t be the last time this happens in a world of proliferating media platforms.

What this episode dramatically illustrates is that media content and outlets are blurring together today thanks to the rise of myriad new technologies and platforms. New media technologies and competitors generally ignore or reject the distribution-based distinctions and limitations of the past. As a result, it is now possible to consume the same piece of content via a broadcast TV or radio station, a cable channel, a satellite system, on a DVD player, on a cell phone or mobile media device, on a portable gaming system, or over the Internet. Thus, contrary to the famous assertion of media analyst Marshall McLuhan that “the medium is the message,” today the medium is just another medium or distribution path; the message (or content in general) is now truly king.

Convergence means content can be delivered in many ways, and it will be consumers who increasingly determine when and how that happens. As a result, this “convergence problem” will make it increasingly complicated and intrusive for lawmakers to apply old media standards and regulations to newer technologies and outlets. As my PFF colleagues Jeff Eisenach and Randolph May argued in a 2000 FCC filing: “The phenomenon of convergence has … rendered obsolete a regime in which differential content regulation is applied based on the technology used to deliver content.”

That’s truer than ever now. Moreover, the Bedford Diaries episode serves as another example of how the government’s one-sided content controls are driving provocative original programming away from broadcast TV and radio and onto new, unregulated platforms (such as cable, satellite, and the Internet). If this sort of asymmetrical regulation continues, the government will essentially be writing a premature death warrant for free, over-the-air television and radio broadcasting.

Adam Thierer ([email protected]) is senior fellow and director of the Center for Digital Media Freedom at the Progress & Freedom Foundation.