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Editorial: FCC should shift media priorities

Move on from five-year fight over "wardrobe malfunction.''

Last update: May 7, 2009 - 7:34 PM

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CONTENT CONCERNS

"Ninety percent of the justification for the FCC engaging in content regulation was predicated on a spectrum scarcity argument, which just doesn't hold water anymore."

Jane Kirtley, director of the University of Minnesota's Silha Center for the Study of Media Ethics and Law

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At what point does a "wardrobe malfunction" become a government malfunction?

That's the question that could be asked in the case of the Federal Communications Commission (FCC) and CBS, which aired the 2004 Super Bowl halftime show in which Justin Timberlake revealed Janet Jackson's breast. The infamous incident, which lasted about half a second, has languished in the court system for half of a decade. Just this week the U.S. Supreme Court set aside an appellate court ruling that had overturned an FCC fine against CBS.

And that was actually the second time in the last few weeks that the highest court in the land had become involved in some of the low moments in modern media. Two weeks ago it upheld fines for "fleeting expletives," which are mostly off-the-cuff cursing by stars like Cher and Bono after hauling in hardware at awards shows.

Of course, the court was just doing its job, which is to interpret law. The real malfunction is with the FCC, and in particular former Commissioners Michael Powell and Kevin Martin, whose crusade against coarse content evokes the obsession of Inspector Javert from "Les Miserables" during an era when the agency needed someone more like new media maven Steve Jobs of Apple.

Indeed, many claiming to be scandalized by the Janet-Justin joust first learned of the event because of new media, as computer screens showed in slow motion what the big screens tuned to the big game couldn't catch. Of course, the Internet is just one of the new media technologies that have forever fractured the media landscape. The disruptions from these changes bring both challenges and opportunities, and should be more of the focus for Julius Genachowski, President Obama's pick to head the FCC.

His first priority should be to work through the troubled transition to digital TV from the existing analog spectrum, which after delays is slated to happen on June 12. While well-intentioned, the DTV switch has been badly bungled in Washington, and more attention is needed from the FCC and its new leader.

The FCC also needs to focus on the contentious issue of so-called net neutrality, the idea that Internet service providers should not prioritize content, or the companies delivering it.

New media technology has opened up a world of possibilities. It's also played a role in the closing of some newspapers, and reduced the reporting ability of many more. That was one of the key messages from hearings held on Wednesday led by Sen. John Kerry, D-Mass., whose hometown newspaper, the Boston Globe, was threatened with closing this week before union concessions kept it printing.

Among the many ideas to help the ailing industry are revisions of cross-media ownership rules, which may mean more media consolidation but could also keep more newspapers viable. The debate over this crucial issue -- as well as long-term goals of encouraging diverse ownership serving local communities -- should also supersede the Super Bowl controversy, as well as many other content questions.

To be sure, the FCC still has a role in policing the public's airwaves. But market mechanisms like Nielsen ratings and the resulting advertiser investment already are a strong deterrent from inappropriate content.

Instead, the FCC should shift its priorities and work toward applying new thinking to the new media landscape.

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