The Printing Press to the Internet
11. Broadcast & Cable Television Regulation
C H A P T E R E L E V E N Broadcast & Cable Television Regulation CONTROVERSY: “Indecent Exposure: FCC v. Fox and the End of an Era.” “Why Regulate Broadcasting?” “Red Lion and Pacifica: Are They Relics?”1 As the titles of these three law review articles indicate, many commentators had anticipated big things from Federal Communication Commission (FCC) v. Fox Television Stations, Inc., perhaps the end of the decades-old First Amendment broadcast regulatory model.2 Under the model, the Court allows Congress and the FCC to regulate over-the-airways broadcasting based on standards that are fundamentally different than print, cable, the Internet, and any other medium. That approach is unconstitutional, critics say, because it relegates broadcasters to the lowest level of free expression protection among media speakers. It’s indefensi- ble, they argue, because the Court’s justifications for such unequal treatment—the spec- trum scarcity, pervasiveness, and unique accessibility to children doctrines—are unsupportable in our era of spectrum abundance, media diversity, and filtering technolo- gies that allow parents to block out unwanted programming. Moreover, it makes little sense to apply a unique First Amendment standard to broadcast programming when TV content is syndicated on Cable TV and streamed on the Internet, they say. The Court, however, saw things differently. FCC v. Fox Television Stations, 132 S.Ct. 2307 (2012), was only about the legitimacy of the FCC’s new fleeting expletive indecency policy, which did not require consideration of the First Amendment spectrum scarcity, pervasiveness, or accessibility doctrines, the Court said.3...
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