The previous June, Powell had presided over his greatest triumph: a breathtaking proposal to knock down what few legal restraints on broadcast ownership still remained. A single company would be able to own television stations reaching 45 percent of the national market, up from 35 percent. Companies would be allowed to own daily newspapers, television stations and radio stations in the same geographical area, breaking a long-standing ban against so-called cross-ownership. Concerns about corporate media consolidation be damned: Powell wanted the big to get even bigger. His proposal would have affected everything you read, see, and hear, with what remained of local programming and public service potentially giving way to cheap syndicated programming and an increased obsession with the bottom line.
What was Powell's reward for his bold vision? Why, those know-nothing politicians on Capitol Hill revolted. And it wasn't just liberal Democrats like Rep. Ed Markey of Massachusetts. Or the occasional rogue Republican, like Sen. John McCain of Arizona. No. It was hard-core conservative Republicans, like Sen. Trent Lott of Mississippi, and virtual subsidiaries of the Republican Party, like the National Rifle Association. Some two million Americans called or wrote to the FCC, telling the commissioners they were mad as hell and weren't going to take it anymore. By September, both the House and the Senate had voted by wide, bipartisan margins to put large chunks of Powell's deregulatory scheme on hold. Even in a Congress not shy about expanding the parameters of corporate power, the idea of a few enormous corporations controlling most of the media was too much -- not just for liberals, but for conservatives as well. George W. Bush, who ran for president in 2000 as a uniter, had finally brought Republicans and Democrats together. And Powell's reputation as the master of a new media universe was rapidly becoming a joke.
So it was likely that Powell sought relaxation and distraction as he kicked back to watch the New England Patriots and the Carolina Panthers battle for the NFL championship. But then came the halftime show. Need I repeat what happened? If you were paying very, very close attention -- unlikely, given how lame the proceedings were -- you might have caught a quick glimpse of Janet Jackson's jewelry-enhanced right nipple. Powell, though, saw something else. He saw a violation of the FCC's indecency standard, which, between 6 a.m. and 10 p.m., prohibits "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community broadcast standards for the broadcast medium, sexual or excretory organs or activities."
In other words, Michael Powell saw an opportunity. And he seized it.
Never mind that Powell was the very model of the modern technocrat, a man of the world who had heretofore seemed disdainful of the very idea of regulating media content. Powell called Janet Jackson's nipple shot "outrageous." He said, "We all as a society have a responsibility as to what images and messages our children hear when they're likely to be watching television." He wagged his finger some more, adding, "I don't think that's being moralistic, and I don't think that's government trying to tell people how to run their businesses. I don't think you need to be a lawyer to understand the basic concepts of common decency here."
Thus did Michael Powell reinvent himself. The Great Deregulator morphed into the Moral Crusader. The technocratic libertarian became the avenging angel. CBS and its television stations eventually had to pay a $550,000 fine. Radio giant Clear Channel ended the career of Bubba the Love Sponge and tossed Howard Stern off six of its more than 1,000 radio stations. Before the year was out, Stern announced he was leaving his long-time employer, Infinity Broadcasting, so that he could take his sexual and excretory content to Sirius, a satellite operation beyond the reach of the FCC. By one accounting, the FCC has levied 21 fines for $4.7 million within the past year. Powell tut-tutted when an unclothed female backside appeared in a Monday Night Football promo, and he shamefully kept his silence when ABC affiliates refused to broadcast an unedited Saving Private Ryan on Veterans Day, because of concerns about depictions of violence -- and because the soldiers who are seen fighting and dying on the beaches of Normandy use some naughty words. (In New Orleans, ABC26 WGNO initially said it wouldn't broadcast the movie, but ultimately aired it.)
"I think he's gone way too far. I think the commission has gone way too far. He's the national nanny, the moral center," says Jeff Chester, executive director of the Washington, D.C.based Center for Digital Democracy. And Chester notes that the Democratic members of the FCC -- who oppose Powell on ownership deregulation -- have been only too happy to support him on his anti-decency crusade. "This focus on indecency," Chester says, "has, unfortunately, been a bipartisan obsession."
In other words, a political establishment that had been united against Powell was suddenly united with him. With the exception of a few free-speech gadflies, Republicans and Democrats competed with one another to see who could most loudly denounce the evils of flesh and foul language. It was a truly frightening development, and one that could get worse as we skid into 2005. Increasingly our media are being dumbed down so Congress may pander to a tiny band of cultural conservatives whose tastes and standards are alien to those of the country as a whole. Yes, Michael Powell saved his career. But at what cost?
In analyzing Michael Powell's newfound dedication to decency, it is useful to consider the career of his father, Colin Powell, the much-admired, much-humiliated secretary of state who will soon be replaced by Condoleezza Rice. To Colin Powell's critics, his failure to resign and speak out against a president with whom he was clearly at odds was inexplicable. Yet there was never any doubt that Powell was, indeed, in disagreement with the Bush administration's hyper-aggressive foreign policy. Powell himself made sure we knew, leaking profusely to the likes of Bob Woodward, who wrote about Powell's dissent and isolation in his book Plan of Attack.
Larry Sabato, director of the University of Virginia's Center for Politics, sees a parallel between the Powells and the Bushes. Like George W. Bush, Sabato says, Michael Powell has openly embraced conservative views that his father only flirted with. Referring to the fathers, Sabato explains, "Powell and Bush are both relative social moderates. Their sons have evolved along with the Republican Party and have taken much more conservative stands on moral and cultural issues. This new generation either believes it or goes there because it's required by the modern-day composition of the Republican Party."
Maybe Michael Powell had been appalled by indecency all along, and just hadn't had a chance to show it until 2004. But by all appearances, Powell changed directions this year (he's been an FCC commissioner since 1997, and chair since 2001), ensuring his support among the moral-values crowd, if alienating the broader public he had once hoped to impress.
To be sure, Michael Powell, as he himself likes to point out, is merely following the law. Kevin Werbach, a professor at the University of Pennsylvania's Wharton School and the FCC's former counsel for technology, has worked with Powell and likes him personally. According to Werbach, the seeming contradiction between Powell's deregulatory approach to ownership and his heavy hand with respect to indecency is the result of two very different responsibilities borne by the FCC. One is to foster competition -- and Powell sees deregulation as part of that, as it would put broadcasters in a better position to compete with newer forms of media, such as satellite and cable (never mind that the same few megacorporations dominate in those media as well). The other is to regulate indecent programming, something that the FCC has been required to do by law since the 1920s.
"From Powell's perspective, those are two very different functions, but they're both defined by Congress," says Werbach, who adds: "Michael Powell was never the radical-libertarian deregulator that people made him out to be, nor is he the great moralistic crusader that people make him out to be now." Werbach calls Powell "a really good guy who really means well. I don't think he went to FCC thinking his crusade in life was to clean up broadcasting. Michael Powell's problem much of the time is that he's a better lawyer than he is a politician."
Fair enough. But there's more than a little disingenuousness in the way Powell chooses to interpret his mandate to keep the airwaves nice and clean. For instance, in an interview in the December issue of the libertarian magazine Reason, Powell observed that the FCC does not go after violators on its own -- rather, it acts in response to complaints. "Many people have tried to argue that we should be like the FBI on indecency and be affirmative, that we should go out and listen to television and radio. We don't do that," Powell was quoted as saying. "We wait for the American people to complain, and then we act on complaints. What has happened in the period you've identified is indecency complaints have skyrocketed."
The problem with this is that "the American people" are not complaining. Yes, it's true that, for whatever reason, there was an enormous public outcry over the Janet Jackson incident. But we recently learned that outcries over other eruptions of indecency have been manufactured entirely by a right-wing organization known as the Parents Television Council, headed by veteran conservative activist Brent Bozell. On December 6, the trade magazine Mediaweek reported that according to the FCC, complaints of indecency rose from fewer than 350 in both 2000 and 2001 to 14,000 in 2002, then to 240,000 in 2003, and to more than one million through October 2004 -- an astronomical increase. But it turns out that 99.8 percent of indecency complaints in 2003 were filed by the Parents Television Council, and that percentage has risen to 99.9 percent this year if the Janet Jackson complaints are excluded. Mediaweek's findings parallel those of Jeff Jarvis, a blogger and former critic for TV Guide.
Amazingly, Powell's response is that organized pressure groups deserve respect, too. In a Dec. 3 op-ed piece for The New York Times, Powell wrote, "Advocacy groups do generate many complaints, as our critics note, but that's not unusual in today's Internet world. We are very familiar with organized protests when it comes to media issues, but that fact does not minimize the merits of the groups' concerns."
Undoubtedly it has not escaped Powell's attention that the Parents Television Council is an active participant in the unusual liberal-conservative coalition that opposes his plans to deregulate ownership still further. Thus, as with the Democratic members of the FCC, Powell has found common ground with his former opponents, at the expense of a rational approach to free speech.
The very term "deregulation" can serve to obfuscate what's really at stake here. As the media scholar Robert McChesney, author of The Problem of the Media, has observed, allowing more and more broadcast outlets to fall into fewer and fewer corporate hands isn't deregulation -- it's simply a different type of regulation. Broadcast television and radio could not exist without government regulation. It is the government that awards broadcast frequencies to corporations. And it is the government that protects those corporations by making sure no one else intrudes on those frequencies.
We have become so accustomed to the notion that the government may prevent us from seeing and hearing indecency that we have forgotten why this is so. The reason is an increasingly outmoded notion known as the scarcity rationale. The idea is that there are only so many broadcast frequencies to go around; therefore, since the 1920s, the government has regulated this scarce resource on behalf of the public, in part by requiring broadcasters to offer programming in the public interest. Over the past few decades, as the fairness doctrine and the equal-time provision have gone by the wayside, the rules against indecency remain as the last, vestigial reminder of what once was.
At the same time, most television programming has moved to cable and satellite (even most over-the-air broadcast channels are just more choices on the cable box), which are not subject to indecency regulations. For one thing, the scarcity rationale doesn't prevail. For another, consumers must choose to purchase cable or satellite TV, and therefore do not need to be protected from what comes into their home as a consequence of that choice. Satellite radio is still in its early stages, but that promises to become a major carrier of unregulated programming as well. The FCC, and Powell himself, made some noises about trying to regulate cable and satellite programming earlier this year, although it has apparently backed down. But with an estimated 85 percent of households hooked up to cable or a satellite dish, the notion of continuing to regulate old-fashioned, over-the-air broadcasting looks increasingly foolish.
The irony is that if Powell were truly concerned about indecency, he wouldn't be so quick to allow big media to get even bigger. Because according to media activists of varying political persuasions, media concentration itself has led to a lack of choice that, in turn, makes it attractive for corporations to fatten their bottom line with cheap, sleazy programming like Married by America and Who's Your Daddy?, both targets of the moral crusaders.
"We used to have checks and balances that worked in terms of programming that was over the top, and that's gone," says Jonathan Rintels, executive director of the Center for Creative Voices in Media, a Washington, D.C.based public-interest group. In a recent piece for MediaChannel.org, Rintels and Peggy Charren, the founder of Action for Children's Television, explained: "Independent program producers and independent locally-owned stations were once important restraints on the networks' tendency to push objectionable programming to boost their ratings. But FCC deregulation' allowed media conglomerates to eliminate both independent producers and many locally-owned affiliates. The result is an increase in objectionable programming."
Or as Charren told me separately, "If you combine money with more money, people are going to say, you know, this indecent stuff is a way to make money."
With the election now over, the chances are excellent that concerns over indecency will fade into the background. "It's one of those issues that seem politically safe," says Robert Thompson, director of Syracuse University's Center for the Study of Popular Television. "Like the anti-communist issue back in the '40s and '50s, most people were anti-communist. And it was an issue that a politician could latch onto and get an awful lot of traction with."
Of course, a lot of people's lives were ruined over the anti-communist witch-hunts of the '50s. Perhaps what will save people from falling victim to an anti-indecency witch-hunt is the knowledge that racy shows such as Desperate Housewives, as The New York Times' Frank Rich has observed, are even more popular in such paradigms of red-state moral correctness as Oklahoma City and Kansas City than they are in decadent blue-state cities such as New York and Los Angeles. Let's hope there's only so much hypocrisy that even an anti-indecency crusade can accommodate.
This past June, the U.S. Court of Appeals for the Third Circuit, in Philadelphia, ordered the FCC to reconsider its plan to deregulate media ownership. It was yet another setback for Michael Powell, a man who came into office with a technocrat's vision, who sees regulation as part of the past, who'd rather talk about WiFi and voice-over Internet and digital television than about old-fashioned issues such as government regulation of content. Trouble is, the first legacy Powell chose for himself slipped out of his grasp. The second -- the great moral crusade -- may not be the one he wanted. But it's unquestionably the one with which he's stuck.