FCC vs MPAA vs us, no matter who wins, we lose.

by Paul William Tenny

If there was anything positive to be gained from the cheesy Alien vs. Predator popcorn flick, it was the tagline "no matter who wins, we lose." There are so many things in life that were dying for a tagline like that, that it's a miracle it took this long to find one. In two stories of censorship, the people actually one a fight against the FCC -- the federal agency founded to serve the public interest but instead is perenially focused on serving religious conservative's interests -- and lost another against the MPAA's epic reign of kids-only censorship when it comes to sex.
I'll begin with the shorter story, that being the struggles of writer-director Kevin Smith in securing an 'R' rating for his new comedy, Zack and Miri Make a Porno. I've written about this before, about how fascist the MPAA has become -- probably always has been -- but especially in the last few years with the studio coop claiming authority to approve things so physically distinct from the actual film itself that it borders on insanity.

Posters, Internet trailers that don't include any footage actually in the film, radio ads, you name it, the MPAA's draconian, authoritarian shadow envelopes everything short of blogs, and you know that's coming next.

Their latest sin was sticking Z&M with an NC-17 rating, guaranteeing that if released as-is, nobody would ever see it. You see, that's the catch here that the MPAA and right up until the day he died, even Jack Valenti refused to acknowledge this -- there are a grand total of like 18 theaters out of 30,000 in the entire country that will show an NC-17 film. With that rating, you'd get more viewers on YouTube that in theatrical release. Theater owners equate NC-17 with hardcore porn and won't show it no matter what the content actually is, so it might as well be a blacklist or outright MPAA-led ban for all the effect it has.

It is long past time to replace the MPAA rating system with something that more accurately reflects the content of a film, rather than the morals of the always-conservative, secret ratings panel. Because secret panels just scream credibility.

The public actually won for once in a long-running court battle between the FCC, and CBS over a sub-one-second snippet of Janet Jackson's breast during the 2004 Super Bowl half-time show. On what I believe to be a completely unrelated note, every single Super Bowl half-time show since 2004 has sucked.

You can read about it if you want, but what this boils down to is a conservative FCC caught overreaching. Policing obscenity on network television is something we're all going to have to live with even though it's plainly unconstitutional. After all, the 1st amendment makes no exception for nudity, swearing, or obscenity. That doesn't mean the FCC has free reign to fine networks for "fleeting" incidents they aren't directly responsible for.

In tossing out the fine, the 3rd Circuit Court of Appeals ruled on Monday that the commission had acted "arbitrarily and capriciously" when penalizing CBS for the infamous Janet Jackson "wardrobe malfunction" during the 2004 Super Bowl halftime show.

The Philadelphia court said the FCC fine was based on an unjustified and unexplained change in agency policy.

The FCC, given its regulation of speech that we all know and understand is actually unconstitutional but somewhat acceptable, is held to a very strict standard that isn't always applied to other federal agencies. Specifically, if an action of the FCC isn't spelled out almost word-for-word in its congressional charter, courts typically assume the agency is overreaching for powers not granted to it by the people. Even though that does apply to every agency, it's rare for any agency other than the FCC to find itself in hot water for power grabs. What's more striking is that occurrences such as these are not rare, they are in fact all too common under the Bush administration, and the chairmanship of Kevin Martin.

In the past, the FCC has deemed "fleeting expletives", e.g. random, spontaneous outbursts of naughty language to be acceptable, sometimes unavoidable accidents. Live events especially were given a wide latitude, while scripted programming -- which breeds intent -- never have been. Martin widened this policy to include essentially all programming on television, and after wielding massive fines such as the $500k fine against CBS, many networks went overboard in tape-delaying all live programmings out of fear of the FCC, rather than to better serve the public that generally doesn't care.

Fear of government is never a good sign.

There's some good background on the issue in general (but not this case) here, written by Julie Hilden, at FindLaw.com.

According to the appeals court, the FCC got in trouble not for the content of its policy, but as the Martin-led agency tends to do, created a new rule out of thin air that was not justified, substantiated, researched, or really even discussed.

FCC lawyers tried to argue that the exemption applied only to indecent language -- not images, as in the Jackson case. Fleeting images, they said, could be held actionable.

The court rejected that line of reasoning: "A review of the commission's enforcement history reveals that its policy on fleeting material was never limited (to language). The FCC's present distinction between words and images for purposes of determining indecency represents a departure from its prior policy.

I love how the court pointed out that the entire incident lasted just "nine-sixteenths of one second", which I think ought to be a strong part of any reasonable standard on obscenity. Two naked people making babies for three straight minutes is probably not something you want kids to see during prime time (even though every TV manufactured in the past six years as the controversial V-chip built into it, allowing parents to block such content without any effort on their part.)

A flash that lasted only 16.8 frames? Not so much.

Before I leave you to ponder this, think about this:

FCC chairman Martin said he was "surprised" by the decision and "disappointed for families and parents. The Super Bowl is one of the most watched shows on television, aired during the hours when children are most likely to be in the audience. Hundreds of thousands of people complained about the show, and a unanimous commission found that it was inappropriate for broadcast television.

There were thousands of complaints over this one incident and virtually every single one came from the Parents Television Council which setup a form-letter on their website, from which complaints could be sent to the FCC automatically with no real effort. The PTC, an extremely conservative moralist group, has a huge following it can call to action to send complaints en mass as part of a drive, as opposed to natural complaints that usually number just 100 or 200 per month on average, out of tens of millions of viewers with dozens if not hundreds of individual episodes aired every month, less than 0.0000023% of American households ever complain.

Even during the Super Bowl incident, even if 10,000 people complained, that's still less than .009%.

Some common sense like that introduced by the appeals court is only going to make our entertainment better, not worse. But that's just my opinion..
in Feature, Film, Television


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