Friday, December 22, 2006

bleep in a tivo

One more thought on the bleeping issue. One reader commented in response to my question about how bleeping "dick" protects anybody, that it could help if a 4-year-old happened to be watching. Better that the 4-year-old hear "bleep in a box" than "dick in a box."

I was about to reply that the concern for children leaves the mystery unsolved because the FCC rule requires bleeping during hours when young children are likely to be watching, while SNL bleeps even between 11:30 pm and 1 am, when young children would be asleep. Perhaps, however, the protect-the-children rationale still works for SNL because of the growing popularity of TiVo and other DVRs. Parents might watch a late-night show during daytime hours.

THAT possibility (which has, in some sense, been with us since the days of VCRs), in turn raises the question of whether the FCC should be able to expand the hours of its decency reg to cover all times. Would doing so go beyond the FCC's statutory authority because, even though nominally a regulation of a broadcast transmission, it would be predicated on the use of post-reception technology? Even if not, would extending decency regulation deep into the night and the wee hours of the morning run afoul of the First Amendment principle that an entire medium of communication can't be made to conform to standards appropriate to children? (As Justice Marshall put it: "The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.")

And finally (I hope), this whole episode reveals the oddity of a regulatory regime that will come under increasing pressure with increasing convergence of communications platforms.