Washington -- Public Knowledge, the Cato Institute and a
collection of tech-policy groups have called on the U.S. Supreme Court to
overturn the 1978FCC vs. Pacifica decision
and give broadcasters the same First Amendment freedom to program to their
audiences as other media including print, cable and the Internet.
That urging came in a friend of the court brief supporting
Fox and ABC. The Supreme Court is currently deciding whether to uphold Federal
Communications Commission indecency decisions against those two broadcasters
after the 2nd U.S. Circuit Court of Appeals ruled that those decisions -- and
the FCC's underlying indecency-enforcement policy -- were unconstitutionally
vague and chilling. The FCC and DOJ appealed those rulings.
based on an archaic and unrealistic conception of broadcast television,"
they argued. In the 1978 Pacifica decision, the high court voted
5-4 to uphold an FCC decision to reprimand Pacifica-owned New York radio
station WBAI for airing comedian George Carlin's "Filthy Words" routine,
establishing the current standard of "indecent but not obscene" material.
The groups go further than the National Association of
Broadcasters in asking for the FCC to get out of the content-regulation
Given the way the tech companies frame their support of broadcasting, it is not
a surprise they are not exactly on the same page.
The groups, which include TechFreedom, the Center for
Democracy & Technology and the Electronic Frontier Foundation, essentially
argue that broadcasting should be free of content regulations because
technology has rendered it "rare," rather than pervasive, with only a
small and dwindling percentage of people receiving content over the air.
The groups go through
a laundry list of alternative video delivery methods they say have
"largely displaced" traditional broadcasting, including cable and
telco TV, direct-broadcast satellite, Internet streaming and online DVD
rentals. That, of course, is the argument tech companies -- particularly
computer and consumer-electronics firms -- have used to argue for taking
broadcast spectrum back from the industry to make more bandwidth available to
smartphones and tablet devices.
They contrast the current media terrain to that of the
mid-1970s, when the Pacifica decision was rendered. At that time, there were
few cable outlets and the choice was essentially between broadcast and print
"Whatever legal logic and common sense Pacifica might once have had was built
on factual foundations that have long sense collapsed," the tech firms
argued. "Traditional broadcasting has been largely replaced by other video
delivery media that are invited into the home."