Ban the FCC

By Crispin Sartwell

Now the FCC won't let me be or let me be me.
-Eminem

The Federal Communications Commission lost a case before the Supreme Court last week. The court held that the commission - after having with extreme irresponsibility licensed the use of telephone airwaves to a company called NextWave for billions of dollars - could not now revoke those licenses because the company could not make the payments.

It seems rather an obscure matter, but it provides a reasonably good occasion to ask some fundamental questions. First, is the authority of the FCC constitutional, and second, does it actually improve the state of communications in this country?

The FCC was established by the Communication Act of 1934, which reads, in small part: "It is the purpose of this Act, among other things, to maintain the control of the United States over all the channels of interstate and foreign radio transmission; and to provide for the use of such channels, but not the ownership thereof, by persons for limited periods of time, under licenses granted by Federal authority, and no such license shall be construed to create any right, beyond the terms, conditions, and periods of the license."

In other words, the act claims the airwaves as the property of the United States government. That is why the FCC thinks it can offer them to the highest bidder.

However, if you auction airwaves, you first of all put them in control of whoever has the most money: that is, for the most part, huge communication corporations. And if you auction them to the highest bidder for billions, you make it necessary for the people who are licensed to recover their huge investments. And so if they are operating telephones, they must charge their customers very high fees. If they are operating radio or television stations, they must generate revenues by including huge amounts of advertising.

Any claim that such a procedure is in the public interest is absurd. And one of its effects is that the media in this country is monopolized by a few bland voices. You can travel all over America, and you will essentially hear the same five FM radio stations, with the same programming: NPR stations, country, top forty, alternative rock, rap/r&b. Virtually all such stations are programmed by central services, and are as empty and repetitive as it is possible to imagine. You will hear the same twenty-six recording artists wherever you go, and almost never anything odd, innovative, or even mildly interesting. This impoverishment of our art and our experience is a direct result of FCC regulation.

But in what sense or on what authority does the FCC own the airwaves and license their use, anyway? Let me remind you of a couple of amendments to the US Constitution: Article 1: "Congress shall make no law . . . abridging the freedom of speech or of the press." Article 10: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

It could not be more obvious that the existence of the FCC is unconstitutional top to bottom, from its basic mission to its most trivial action. The FCC simply cannot exist in a country actually governed by constitutional principles, and its existence should offend your pride as someone not born to be a slave.

The FCC claims the right to regulate the contents of broadcasts; that is, it acts as a censor. Eminem's recordings embody, in my opinion, among the most important and problematic literary and political speech in contemporary America. His observations on race are trenchant and original. In his slightly twisted way, he raps against war and against censorship. He is bleeped into incomprehensibility on the radio, because of FCC censorship.

The performance artist Sarah Jones's song "Your Revolution" - a protest against the way women are degraded in the media (and hence a critique of the corporations that the FCC authorizes to provide our "content"), has been effectively censored by the FCC on the grounds that, for example, it explicitly critiques calling women "bitches."

The Communication Act provides that "No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication." In this function - also entirely and obviously unconstitutional and degrading to a free people - it is the direct inheritor of the Comstock Laws of the nineteenth century, in which arch-puritan Anthony Comstock claimed the right to regulate the contents of the mails. Many were imprisoned not only for the distributing pornography, but for mailing basic educational materials on sex and contraception.

The Comstock laws were eventually struck down by the courts, as they simply had to be by a judicial system concerned even to pretend to pay lip-service to the Constitution. If the Comstock Laws are unconstitutional, so is the Federal Communications Commission.

In short, the FCC creates an American media that is corporate-dominated, dull to the point of stupefying, and entirely subject to government censorship.

So here's my positive program. Jam existing broadcast stations. Establish pirate operations in all media. Keep on hacking. Sometimes the only possible creation is destruction. Let's try to make it possible to live and listen and watch as if we were really were free.