FCC vs. The fifth amendment
July 8, 2004 12:42 PM   Subscribe

FCC wants radio, TV to keep tapes of shows. Presumably this is to make it easier for the FCC's Enforcement Bureau to levy some of those hefty new fines. Now I know the issue of the FCC fines and the FCC in general has already been discussed here, here, here, and possibly here. But it seems like there's a fifth amendment issue here that's new to this debate. Will forcing broadcasters to keep tapes in effect compel them to give evidence against themselves?
posted by Grimgrin (19 comments total)
Rush won't like people fact checking his ass!
He may have to make a personal call to his buddy Dubya on this one.
Will these be public record or protected as secrets by the Patriot Act?
posted by nofundy at 1:00 PM on July 8, 2004

At this point, most radio stations archive everything digitally anyway.
posted by ubueditor at 1:02 PM on July 8, 2004

The Bill of Rights is soooooo pre-9/11.
posted by clevershark at 1:09 PM on July 8, 2004

Wow, it's rare to get a question so cut and dried:

nope, no 5th Amendment issues here.

The 5th Amendment deals with criminal issues -- there's that word, "incriminate". The FCC deciding whether or not to fine you is purely a civil issue (arguably, even less significant than civil, because the FCC is only licensing the spectrum to the broadcaster, and so may place whatever requirements it wants on them. Almost a purely contractual issue.)

So while we can all agree that the FCC sucks for many reasons, "infringing the Fifth Amendment with this new regulation" isn't one of them.
posted by peterb at 1:22 PM on July 8, 2004

Nope. No Fifth Amendment issue.

Lots of regulated businesses are required to keep records. This really isn't any different.
posted by Rob1855 at 1:59 PM on July 8, 2004

Re Fifth Amendment: Corporations have no protection against self-incrimination under the law. I believe this was originally established in case law.

Re archiving: I'm waiting for the FCC to subpoena C-SPAN for when Cheney used the "f-word." Does anyone know if that went out live?
posted by ZenMasterThis at 2:19 PM on July 8, 2004

Will forcing broadcasters to keep tapes in effect compel them to give evidence against themselves?

regardless of the idiocy of the FCC's recent pronouncements,
corporate entities are not human beings and should have no rights under the constitution. so-called 'corporate crimes' are committed by individuals who should always be held individually responsible for them. in a sane world, a 'broadcaster' (in the sense of a corporate television or radio network) would have no fifth amendment rights.

p.s. you know it's going to be a great day when you open your newspaper and see that prick ken lay in handcuffs! w00t!
posted by quonsar at 2:23 PM on July 8, 2004

Every voice or electronic conversation I have from my place of business is recorded and stored (forever as far as I know) for the entertainment of the regulators.... and I can face all kinds of criminal charges.
Tangentially discussed in this topical thread.
posted by cyclopz at 2:29 PM on July 8, 2004

on top of everything else that's been said, physical evidence (e.g. videotapes) doesn't count for 5th amendment purposes anyway. The privilege against self-incrimination only applies to testimony by the defendant not evidence that the defendant may possess suggesting that he is guilty.

All the FCC is really saying is that the broadcasters aren't allowed to destroy evidence. As Rob 1855 says, that seems pretty uncontroversial to me.
posted by boltman at 2:32 PM on July 8, 2004

It would be easy for broadcasters to keep everything on non-standard equipment or use a technology that would not allow easy indexing. Imagine making a complaint to the FCC and the broadcaster just sends a box labeled "january" full of unmarked tapes in beam (or some other other rare) format.
posted by urlnotfound at 3:14 PM on July 8, 2004

beam? wtf? I officially hate the "Spell Check". That should read "...full of unmarked tapes in BetaMax (or some other other rare) format ."
posted by urlnotfound at 3:15 PM on July 8, 2004

BetaMax--whew! Here I was thinking there was some format called "beam" but I was afraid to ask lest I look uncool.
posted by Turtles all the way down at 3:58 PM on July 8, 2004

(since Beta [or digibeta] is the industry standard, that probably would be what happens)
posted by thebigpoop at 4:39 PM on July 8, 2004

The FCC can't use bittorrent?
posted by srboisvert at 4:40 PM on July 8, 2004

Back in the old days, TV and radio were required to keep program logs for this purpose. The evidence of naughtiness was based on complaint letters received by different persons. The FCC had a huge storehouse full of letters from irate grannies.
Surprisingly, one of the quickest ways of getting fined was "dead air"--I believe any amount over 15 seconds had to be logged as such. ("Technical Difficulties--Please Stand By" would protect the station, though.)
Other offenses included radio stations not giving their callsigns ("Wxxx" or "Kxxx") something like every 15 minutes, not playing enough "public service" and local information, and not doing their EBS (Emergency Broadcast System) test once a week.
The breaking point came with the "equal time" provision, enacted by Congress, that essentially killed any serious political debate, with few exceptions.

Eventually, everybody said "Why is the FCC requiring all of this BS? It is not the job of government to tell us what to broadcast, or to dictate what people can listen to. Let the market decide."

And liberty existed on much of the airwaves until the corporations were allowed to monopolize them, and Michael Powell decided that his CATO Institute philosophy was better than free speech.
posted by kablam at 4:57 PM on July 8, 2004

What's with all the sane and rational responses? This thread was going to be much more fun if y'all had just followed dildo's snarky lead in comment #1. I mean at least clevershark tried.
posted by Witty at 5:47 PM on July 8, 2004

Doesn't everyone keep tapes of all their shows anyway? Haven't they for the last 20-30 years? I know they didn't really bother archiving unpopular stuff in the 70s or before that, but I thought we'd been doing complete archiving for a long time now.
posted by reklaw at 8:24 PM on July 8, 2004

This thread was going to be much more fun if y'all had just followed dildo's snarky lead in comment #1

Yeah! What fleshlight said!
posted by nofundy at 5:11 AM on July 9, 2004

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