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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