It has been 35 years since comedian George Carlin started making his living with a routine called ??even Words You Can Never Say on Television,?and somehow we just can;t get beyond it. On March 17, the Supreme Court announced it would hear a case on whether the Federal Communications Commission overreached when it threatened to fine News Corp. for “fleeting expletives” uttered on Fox TV broadcasts.
The obvious question here is whether both the FCC and the Supremes might have something more productive to do. But there’s a serious issue behind this, and it has nothing to do with profanity or “wardrobe malfunctions.”
The much more important issue is that the government--the FCC, Congress, and the courts--acts as though the totality of television is what is broadcast over the air. Everyone is living within a legal and regulatory framework that was set up in 1936 and last significantly modified in 1996. It is a world in which the broadcast networks and local stations are surpeme, cable and satellite are mostly alternative media for the delivery of broadcast content, and Internet-based TV doesn't exist. If the military functioned like telecommunications regulation, horse cavalry tactics would be at the top of the West Point curriculum. The reality of our world, for better or worse, is one where the first season of HBO's The Wire featured and extended (and very funny scene) where the dialog consisted entirely of one of the most unspeakable of Carlin's seven dirty words, repeated in an amazing variety of inflections and meanings.
The FCC isn't blameless in fostering its own irrelevance. Chairman Kevin Martin has wasted much of his term not only on a crusade against "indecency" but on what often looks like a vendetta against the cable industry in general and Comcast in particular. The commission's other passion has been an endless argument over the concentration of media ownership at a time when big media conglomerates (other than News Corp., anyway) seem to be looking for ways to disassemble themselves as quickly as possible.
The problem is that even a much better FCC than the one we have couldn't solve the problem without a new legislative charter that reflects a telecommunications revolution that has stood everything on its head. The leadership to accomplish this has been totally lacking in both Congress and thre Administration for years and, alas, there is little reason to believe that the impending election will change things.