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60 Fed. Comm. L.J. [i] (2007-2008)

handle is hein.journals/fedcom60 and id is 1 raw text is: ' .. FEDERAL COMMUNICATIONS LAW JOURNAL Formerly FEDERAL COMMUNICATIONS BAR JOURNAL VOLUME 60 DECEMBER 2007 NUMBER 1 Commentary Expansion of Indecency Regulation Hon. Kevin J. Martin, Adam G. Ciongoli, Robert W. Peters, Roger Pilon, & H on. D avid B . Sentelle .......................................................................... 1 This is a transcript of the November 10, 2005, panel discussion at the National Lawyer's Convention presented by the Federalist Society's Telecommunications Practice Group. The panelists debate and discuss the Federal Communications Commission's (FCC) regulation of indecent content. Articles Space, the Final Frontier-Expanding FCC Regulation of Indecent Content onto Direct Broadcast Satellite By John C. Quale & Malcolm J. Tuesley ............................................ 37 The vast majority of viewers today receive video programming from multichannel video programming providers-mostly cable television or direct broadcast satellite (DBS)-rather than directly over-the-air from broadcast stations. While the FCC has not hesitated to sanction broadcasters for what it deems to be indecent content, it consistently has found that it lacks the authority to regulate indecency on subscription services like cable television. Citizens groups and some in Congress now seek to extend indecency restrictions to DBS services under existing law or through the enactment of new legislation. It is true that DBS, because of its use of radio spectrum to deliver programming to consumers, does share some similarities with broadcasters. Although the Supreme Court has not considered the issue, we believe that the nature of the DBS service more closely resembles cable television than broadcasting. Assuming that the FCC has statutory authority to regulate indecency on DBS (which is itself doubtful), Supreme Court precedent regarding the regulation of content on cable and the Internet strongly suggests that any restriction on DBS indecency would contravene the First Amendment.

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