Mocking headlines the world over greeted the decision by more than 20 ABC affiliates, including Charlotte’s own WSOC, not to televise the movie Saving Private Ryan. From China to Britain, the decision was cast as an example of America’s prudish, puritanical streak and case of censorship in the wake of elections which gave Republicans sweeping control of Washington. Oh, that things were so simple.

The fact is that TV stations’ quite rational fear of arbitrary Federal Communications Commission fines is one of many signs that the New Deal-era regulatory regime for communications is broken beyond repair. The new Congress and the second Bush administration can either move to address this reality or endure more spectacles such as an award-winning account of one of the greatest battles in American history judged too risky to air on Veterans Day.

The crux of the problem is that technological advances in, oh, the last 60 years, have rendered the FCC’s goals and directives rather moot. Cable, satellite, and coming broadband subscription services bypass the FCC’s regulated public airwaves and deliver content directly to consumers. Similarly, Internet-based phone service bypasses the heavily regulated and taxed land-lines to deliver services directly to bill payers. In effect, you have two parallel systems, one heavily regulated, one not. Yet both serve the some broad public with very different tastes and interests.

In the subscription world, the assumption is that consumers will not subscribe to material that offends them. The system polices itself in the same way that print media always has — consumers that might be offended by Playboy, the magazine or channel, have the good sense to not to buy Playboy.

But with the publicly-owned airwaves the policing mechanism is the FCC. Not just an objective set of rules enforced by the FCC, complaints received by the FCC determine the rules. This gets us to the particular perversity at play in the Ryan case.

The FCC maintains that as it acts only on public complaints about FCC license holders, the FCC censors nothing, a fascinating fiction the FCC utterly believes. In effect, the public status of the airwaves gives every member of the public status as a “purchaser” of an over-the-air broadcast. A complaint to the FCC is equivalent to a complaint about a defective product, not censorship.

As a viewer somewhere might have objected to the strong content of Ryan, and as there is no way to know how the FCC would react to such a complaint, WSOC and other stations opted not to buy a ticket to the Fine-o-Mystery game. Makes sense.

The FCC takes this position quite consistently for radio as well as TV. The way WUNC must tip-toe around FCC regulations on sponsorship announcements, an issue that did not make worldwide news, shows that obfuscation is at the heart of FCC practices.

“There’s no list of forbidden terms. The only way to find out if you’ve stepped over the line is if someone challenges it and the FCC issues a fine. So we are always pretty conservative in interpreting the announcements we make,” general manager Joan Siefert Rose explained recently.

This confusion is quite useful for deflecting criticism from Congress about FCC decisions. The regulators get to point to complaints from the public as the source of the problems, not FCC conduct. This amounts to high-stakes game of chicken with Congress, effectively daring lawmakers to change the way the FCC regulates the airwaves.

The FCC’s leadership is quite certain the status quo is here to stay. In an interview in the December issue of Reason magazine, FCC Commissioner Michael Powell made clear that he thinks that changes to the fundamentals of communications regulation are off the table. The government, via the FCC, will decide what happens on American airwaves.

“That battle was over in 1920,” Powell asserts. “You could’ve argued that there should have been a private property model of spectrum, and many have written brilliant articles about how you could have done that.”

“But I can’t live in every century. Nearly 100 years ago, Herbert Hoover as secretary of commerce decided the airwaves belong to the public,” he adds.

So that’s that.

The only alternative, then, would seem to be for Congress to take up Powell’s challenge and move to de-nationalize the airwaves. Lawmakers could direct the FCC to conduct an auction for the rights to chunks of spectrum used for standard definition TV as well as AM and FM radio broadcasts.

The rights would cost broadcasters billions and they would howl about the unfairness of it all. So-called public interest groups would lament the loss of governmental oversight. The FCC insiders who make have made a living deciding how much to fine license holders would lament any change. And even Congress, which now enjoys the best of all possible worlds, zero day-to-day responsibility for regulating broadcasters, yet a wealthy broadcast lobby eager to stay on the good side of lawmakers, will resist this change until the bitter end.

But there is truly no alternative. Technologies which put consumers — not advertisers, not broadcasters, not regulators — in command will be impossible to hold back in the coming years. The mass part of mass media is breaking down into user-defined niches. To pretend otherwise is to guarantee that America’s communications policy will give the world a good laugh day-in, day-out — and deservedly so.