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Can the FCC Regulate HBO?Michael Powell promises to crack down on cable. Can he?

By Brendan I. Koerner
Posted Thursday, Feb. 12, 2004, at 5:47 PM ET

Calling Janet Jackson's exposed breast "a new low for prime-time television," FCC Chairman Michael K. Powell has promised Congress that he'll do his best to prevent both networks and cable stations from airing indecent material. Does the FCC have the authority to regulate HBO, MTV, and other cable channels that regularly show salacious fare?

Not really, although it can try to use its clout to browbeat cable channels into better self-policing. The FCC's regulatory powers extend only to over-the-air broadcasters, who transmit their programs via the publicly owned spectrum. In order to obtain the FCC's permission to use slivers of that spectrum, broadcasters agree to abide by the commission's rules, which include indecency standards. Cable, on the other hand, travels to American homes via privately built and maintained hardware. (The same goes for satellite services like the DISH Network, whose orbiting hardware is privately launched.) So, cable channels needn't strike a bargain with the FCC in order to operate.

The legal logic of this double standard is that over-the-air broadcasts are inescapable—if you have a television with a functioning antenna, you're bound to pick up NBC, CBS, and ABC. Cable service, on the other hand, requires a monthly fee. Paying your monthly cable bill is tantamount to acknowledging that you know what you're getting into, bad words and all. A sensitive viewer who doesn't want to risk peeking at an episode of HBO's raunchy Real Sex series can simply decide not to get cable. For easily offended types who can't imagine life sans ESPN, the FCC recommends asking the cable provider for a "lockbox," which blocks out whatever channels a household deems dangerous.

There are some de facto limits on cable content, especially for channels that rely on advertising—you'll never hear an F-bomb dropped on, say, TBS, lest it upset a show sponsor. And obscenity laws, of course, apply to cable as they do all forms of media, so a channel could face criminal prosecution for airing material that was really beyond the pale.

Other than that, Powell is essentially powerless to put the kibosh on racy cable programming. His posturing on the subject, however, could cajole some cable channels into promising they'll be more vigilant for the sake of the children and their own public-relations images. Powell's responsibility message will doubtless include the fact that close to 85 percent of American homes now receive their television via cable or satellite, so it's basically every bit as pervasive as over-the-air broadcasts.

The FCC could have one regulatory ace up its sleeve, however, at least when it comes to satellite TV. Satellite providers use the public spectrum to communicate with their spacecraft. According to Communications Daily, FCC Commissioner Michael Copps recently hinted that because of that fact, the commission may be able to exert a greater measure of control over the likes of DirecTV.

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Brendan I. Koerner is a contributing editor at Wired and a columnist for Gizmodo. His first book, Now the Hell Will Start, will be published by Penguin Press in May 2008.
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