Powell: Cable Smut Regs Unconstitutional

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Applying broadcast-indecency rules to cable would likely violate the First Amendment, Federal Communications Commission chairman Michael Powell said Thursday in an interview with Fox News Channel.

“It’s very likely unconstitutional,” Powell told FNC’s Neil Cavuto. “I personally do not support an extension.”

Powell’s comments came after Senate Commerce Committee chairman Ted Stevens (R-Alaska) and House Energy and Commerce Committee chairman Joe Barton (R-Texas) declared support Tuesday for regulating cable programming for indecency

Stevens said he thought a cable-indecency law could pass constitutional muster, mainly because the Supreme Court said in 1997 that Congress could force cable to carry local TV stations.

The FCC bans indecent content -- generally defined as patently offensive sexual and excretory material intended to pander and shock -- from 6 a.m.-10 p.m., when children are expected to be watching in large numbers. Fines run as high as $32,500 per violation.

Powell is leaving the FCC this month, so his influence in the pending debate on Capitol Hill won’t be felt. A potential successor -- FCC member Kevin Martin, like Powell a Republican -- has called on cable to create a family-friendly tier of programming.

Powell said a cable-indecency law would encounter trouble because the Supreme Court is unwilling to allow regulation of programming that consumers purchase and have the technical means to block.

“The Supreme Court affords much more significant First Amendment protection to [media] other than broadcasting, like newspapers and cable and the Internet," he added.

Powell indicated that a close look at the legal issues would dissuade Congress from passing a new law that applied to cable and other pay media.

“When the Congress takes a hard look at this, if they really study the constitutionality, they’ll find, as they have before, that it is difficult and unwise to extend it,” he said.

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