The Supreme Court vs. the FCCJanuary 10, 2012
Tuesday marks the start of oral arguments before the Supreme Court challenging the FCC's regulations regarding indecency. The Court will review three incidents, both of which resulted in fines levied by the FCC: pop artist Cher's use of the F-word during a live broadcast of the Billboard Music Awards in 2002, entertainer Nicole Richie's similar F-word outburst on the same program in 2003, and an episode of the television program NYPD Blue depicting a woman's buttocks for several seconds. The case challenges the ruling in FCC v. Pacifica Foundation in which the Court upheld the FCC's power to regulate "indecent" material because broadcasts specifically are available inside and out of the home and uniquely accessible by children.
The latest hearing by the Court will only re-examine the consistency in which the FCC's rules are implemented and enforced. The Court will review, for example, a lower court's ruling that struck down the FCC's enforcement against these most recent violations as inconsistent and impossible to comply with. It will also consider whether the rules themselves are too vague to be applied consistently, a finding that would force the FCC to rewrite its regulations.
But while Pacifica examined First Amendment implications of the FCC's rules on indecency, it did not appropriately consider the constitutional authority of the FCC to make rules regarding broadcasts. Where, exactly, does the FCC derive the power over the airwaves? Under what authority can it decide what broadcast speech is protected and what speech can be censored? Where, in short, in the Constitution does the FCC get its power, as an agency of the federal government, to regulate anything at all?
The simple answer, of course, is nowhere at all. Congress created the FCC in 1934, its charter being:
...regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States a rapid, efficient, nationwide, and worldwide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of the national defense, and for the purpose of securing a more effective execution of this policy by centralizing authority theretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is hereby created a commission to be known as the 'Federal Communications Commission', which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this Act.
Two points are readily observed. First, Congress weaved constitutional justification for the act into the wording, considering the agency a regulation of interstate and foreign commerce. This connection is wrong on two levels: broadcasting is not commerce, one, and two, the original intent of the "interstate commerce" clause does not apply to private citizens or corporations.Read more about the regulation of interstate commerce here. The second point is that Congress exceeds its enumerated powers with the Act by creating an agency with a mission that Congress itself is not authorized to carry out. The FCC is charged with providing a communication system to all Americans and selling it to the public -- not something the federal government has any power to do under the Constitution and certainly not something even hinted at in Article 1, Section 8, which lists Congress's powers. Without a constitutional amendment ceding this power to the federal government, the authority over the airwaves lies with the states and the people, per the Tenth Amendment to the Constitution.
While the Supreme Court is all but certain to ignore the true constitutional questions regarding the FCC, its charter, and its self-crafted mission statement, it may take a small step toward restoring some of our freedom in the coming weeks by overturning Pacifica and forcing the FCC a little bit closer to its constitutional boundaries. Even this narrow victory would prove a win for the United States.
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