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Networks Change Their Tune on TV’s Influence

BY CHRISTOPHER GILDEMEISTER

Fox, CBS, ABC and NBC – the networks which use the publicly-owned broadcast spectrum to air their programming – have claimed that traditional broadcast TV does not enjoy any special advantages over other forms of entertainment, and therefore should not be subject to broadcast decency laws.

But various surveys, studies and statements by CBS itself contradict the networks’ claim.

Recently, the U.S. Supreme Court ruled that the Federal Communications Commission does have the power to fine indecent speech when it is used on the broadcast airwaves at times when children are likely to be in the audience. This finding was completely consistent with Congressional laws and Court rulings since 1934. 

The Supreme Court has said that the government can regulate what is shown on broadcast TV for three reasons. First, the airwaves are a public utility, owned by the American people as a whole. The networks do not own the airwaves; local stations are permitted to use them, providing they obtain a license from the federal government, and use the airwaves “in the public interest.” Second, the government has a legitimate interest in protecting children from indecent media content. Finally, because over-the-air TV and radio are seen and heard by many more people than are movies, newspapers, books or other forms of media, the government can regulate them more closely. In the legal language of the Court’s 1978 ruling in FCC v. Pacifica, the broadcast airwaves are “uniquely influential and pervasive” in the lives of Americans, and therefore government regulation of their content does not violate the First Amendment.

In their recent arguments before the Supreme Court, the TV networks claimed that the Pacifica decision is grossly unfair and obsolete. Fox told the Supreme Court (supported by CBS, NBC, ABC and the ACLU, among others) that the broadcast networks should not be subject to decency laws. This would mean that the networks would be able to use any foul language they want, in any amount, at any time of day – no matter how many children are watching. In fact, the networks went so far as to say that broadcast decency laws are a violation of the First Amendment.

The crux of the networks’ argument was this: according to the networks, broadcast TV is no longer as important as it was thirty years ago. With the rise of cable and satellite TV, DVDs, the Internet, online media viewing, iPods, iPhones and other new technology, the networks claimed, broadcast TV is just one more choice among many. It no longer gets as much attention or has the unique influence over people as it once did, said the networks.

In their brief filed before the Supreme Court, Fox said:

“While the broadcast media may have enjoyed ‘a uniquely pervasive presence in the lives of all Americans’ in 1978, that is no longer so in 2008…The vast majority of Americans today watch broadcast stations side by side with hundreds of cable channels that are not bound by the FCC’s indecency rules. Given the array of alternative media now available to the average consumer and the variety of roles these alternative media play, it is simply no longer the case that broadcasting has a ‘uniquely pervasive presence in the lives of all Americans.’ “ --  Brief of Fox Television Stations, Inc.  (FCC v. Fox)

And – after pausing to sneer at the “moth-eaten foundations” of the Supreme Court’s Pacifica decision in their brief supporting Fox, the other broadcast networks claimed:

“Thirty years after Pacifica, it can no longer be said that, of all channels of communication, broadcasting is “uniquely pervasive”…Like all media content, broadcast programming is accessible by children to some degree, but certainly it is no longer uniquely available when compared to the countless other avenues —cable, satellite, the Internet, mobile phones, iPods, iPhones, the list goes on -- through which children up to age 18 receive video and audio content. Against this background of profound technological change in how people obtain and communicate information in the 21st Century, the Commission’s insistence that ‘Pacifica’s premises remain as valid today as they were in 1978,’ is simply absurd.” – Brief of NBC Universal, Inc., CBS Broadcasting, Inc., and ABC, Inc. (FCC v. Fox)

In order to compete with cable, the Internet and the rest, the networks claim, they must change with the times – by imitating the extreme violence, explicit profanity and graphic sex found on some cable networks. This is permissible, they say, because broadcast television no longer has the unique influence it once did.

But such a supposition is incorrect. Consider:

·         As of 2007, more than 98% of U.S. homes have at least one television set (which receives broadcast TV). Only 60% of US homes have cable.

·         In 2009, the average American household spends 8 ½ hours in front of the television per day. Teens spent an all-time high average of 3 ½ hours per day watching TV – almost one entire day per week.

·         99% of viewing in the past year was done on a “traditional” television set. Less than 5% of TV viewing was DVR playback. YouTube, Hulu and all other Internet and cell phone media accounted for less than 1% of viewing.

·         Two-thirds of children in the United States have television sets in their bedrooms. Children spend more time watching television than time in school, and more time than in any other activity except sleep.

One recent study conducted by Ball State University found that, while many people may think they watch television less and use other forms of media more, in fact broadcast television remains the dominant form of media in America today – by an overwhelming margin.  According to the study, TV accounts for 99% of all video consumption, reducing viewing via DVRs, computers and cell phones to a totally insignificant margin. Even among more tech-savvy young adults, TV viewing accounts for 98% of all video consumption.

Another study underlines the continued significance of TV, demonstrating that while some argue watching TV is dead (especially among young viewers), in fact it is more significant than ever.

But beyond these statistics, the entertainment industry itself has stated that broadcast TV remains the most influential medium in America today. One proof that TV is still “uniquely pervasive” was provided by Jason Kilar, CEO of the online video website Hulu.com. Though Hulu has grown in popularity and gained viewers since its inception in March, 2008, in an Advertising Age article and video Kilar stated that Hulu viewership went up an incredible 49% after showing a commercial during the Super Bowl – on broadcast TV! If a purely online service, with a large appeal among technophiles, chooses to advertise on TV and sees huge gains by doing so, clearly broadcast television still reaches and influences more people than any Internet website or form of high-tech communication.

But Hulu’s experience is not the ultimate proof of broadcast TV’s continued media dominance. Now, even CBS itself is telling sponsors that broadcast TV is “uniquely pervasive!”

According to Broadcasting & Cable, CBS has begun “an unprecedented ad campaign selling the power of its own airwaves…aimed at reinforcing the notion that broadcast television is very much alive and kicking [and] battling the common perception that broadcast television is in a long-term decline and that the future of profitable TV is with cable.”

In the planned promotional campaign to be carried on CBS’ 140 radio stations, Face The Nation, 60 Minutes, the Late Show with David Letterman, various daytime soap operas, and in ads in USA Today and The New York Times, CBS tells potential sponsors that commercials shown on broadcast TV will be seen by more viewers and will attract more buyers than cable or satellite TV, the Internet or any other form of technology.

“No medium reaches more people than network television…[and] CBS reaches more people than any other network.”  -- CBS President of Marketing George Schweitzer (Broadcastingcable.com, May 3, 2009)

By this contradictory logic, when CBS is selling commercial time to sponsors, broadcast TV is the most dominant, most important, and most influential form of media in the world -- but when CBS and its fellow broadcast networks are arguing before the Supreme Court for the “right” to ignore broadcast decency laws, TV is just one medium out of many, with no unique influence over the 99% of Americans who see it.  

Even though there are many more forms of entertainment today than there once were, the Supreme Court’s wisdom in its Pacifica decision still stands. Broadcasting is every bit as “uniquely pervasive” today as was in 1978. Because of broadcast TV’s overwhelming influence – especially over children -- the American people have a right to expect that the publicly-owned airwaves will be kept free of indecent language, as the law requires.