Beyond Broadcasting: The Constitutionality of Indecency Regulation on Cable and Direct Broadcast Satellite Services

摘要

This paper argues that if the federal government is serious about its stated goals of protecting children and the sanctity of the home, then the Federal Communications Commission should expand indecency regulations to cable and satellite services. The current enforcement system – fining the handful of free broadcasters hundreds of thousands of dollars for each instance of indecency they air, while completely ignoring the much more extreme indecency commonplace on cable and satellite – is arbitrary and nonsensical. After discussing the relevant laws and precedent, the paper analyzes the regulatory history of broadcast, cable and satellite over the past few decades, paying particular attention to a pair of oft-overlooked FCC orders from the late 1980’s – orders that would point the direction of the FCC for years to come and, if carried out to their logical ends, would lead to conclusions in diametric opposition to each other and to the government’s supposedly compelling interests. The paper then examines the FCC’s current approach to indecency regulation – pausing, at times, to ogle some colorful examples – and ultimately questions whether the FCC’s current policies are appropriate.