Friday, October 03, 2003

Rights and Reason: Defining the Public Interest

The Federal Communications Commission fined Infinity Broadcasting $357,000 over last November's "Opie and Anthony" incident in New York, where the two radio shock jocks broadcasted a segment of two people doing the nasty in St. Patrick's Cathedral. The FCC rules this a violation of federal anti-obscenity rules for broadcasters, and issued the fine against Infinity, the largest single-incident fine in the Commission's history.

Not surprisingly, some thought the FCC didn't go far enough, including FCC Commissioner Michael Copps, a Democrat who wanted to consider revoking all of Infinity's broadcasting licenses. In a dissent from the FCC's decision, Copps wrote, "It all comes down to this: station owners aren’t given licenses to use the public’s
airwaves to peddle smut. They are given licenses to serve the public interest."

In a legal sense, Copps has a point. Federal law treats broadcasters not as private property owners, but as licensees of a "public good," namely the airwaves. Accordingly, the public, via Congress and the FCC, can decide what programming is acceptable under the licenses granted to private companies. Copps also points out, with merit, that the total fine against Infinity is little more than a "slap on the wrist" given the broadcaster's financial might.

That's the legal argument. Now let's try the philisophical-moral argument. First, Copps' suggestion that Infinity lose its broadcast licenses is far more obscene than the transgression that got Infinity in trouble in the first place. Copps genuinely believes the "public interest" is served not only through government censorship, but through shutting down private businesses that have not violated the legal rights of others. Infinity employs thousands of people. Should they all lose their jobs and livelihoods over the childish antics of two employees? Of course not.

Second, given the reputation--and I use that word loosely--of Opie & Anthony, it's reasonable to infer that the majority of people listening to the offending program were people who wanted to hear it. In other words, the people were voluntary buying the smut being peddled to them. If there's a market for this type of filth, why shouldn't a broadcaster meet this demand? The bulk of antitrust and competition law, which includes federal broadcasting laws, promote the view that "the consumer is entitled to have his every wish fulfilled". If that's the government's philosophy, than why is smut any less valid a demand than, say, the right to buy physician services at a fixed, below-market price?

Copps clearly sees himself, via his position as an appointed bureaucrat with no accountability to the President or Congress, as the just arbiter of what Americans should and should not have the option of listening to on the radio. This position is consistent with the laws that charge the FCC with protecting an undefined, somewhat mystic "public interest". Thus, it's hard to logically fault Copps' anti-business, anti-consumer, anti-individual rights position. It does mean, however, that we should fault the underlying law and demand its repeal. Radio stations should be treated as private property, period.

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