PERVASIVE NEW MEDIA: INDECENCY REGULATION AND THE END OF THE DISTINCTION BETWEEN BROADCAST TECHNOLOGY AND SUBSCRIPTION-BASED MEDIA

TABLE OF CONTENTS INTRODUCTION I. BROADCAST REGULATION AND THE FIRST AMENDMENT II. THE CASE FOR ELIMINATING THE CABLE/BROADCAST DISTINCTION A. EXPLICATING THE CABLE/BROADCAST REGULATORY DISTINCTION B. CABLE AS A PERVASIVE MEDIUM INDISTINGUISHABLE FROM BROADCASTING III. MODERN MEDIA AND THE UNWARRANTED DISTINCTION FROM BROADCAST TECHNOLOGY IV. ADDRESSING COUNTERARGUMENTS TO ELIMINATING THE DISTINCTION CONCLUSION INTRODUCTION After years of failing to meet expectations, both internet and satellite radio programming are finally challenging terrestrial radio (1) in a manner similar to cable's challenge to broadcast television a generation earlier; these new technologies threaten to hijack market share and revenue from a traditional broadcast medium much as cable did. (2) Broadband technology enables one to broadcast talk radio and music over the internet to reach listeners via their personal computers. Satellite broadcasters use a pay model, selling special radios for listeners to tune into digital satellite programming. Online and satellite stations are increasing their audiences while traditional radio has struggled for over a decade to maintain its audience. The recent high-profile signing of Howard Stern by Sirius Satellite Radio and the 43% average yearly growth in listeners that internet radio has experienced since 2000 have pushed these new media to the forefront of popular culture. (3) As they continue to seek new listeners, online and satellite stations share an additional advantage over terrestrial broadcasters that again merits comparisons to cable--they are exempt from Federal Communications Commission (FCC) scrutiny for indecent programming. Satellite and internet radio fall into the same category for indecency regulation as cable television, which enjoys stronger First Amendment protections than the broadcast networks because of the legal distinction between free services and optional, subscription-based services, and because broadcasting uses limited public airwaves. (4) While this distinction may once have enjoyed overwhelming public support, Congress has begun to examine the issue of eliminating the regulatory distinction between broadcast and non-broadcast media. Legislators have raised this issue with the hope of extending regulations to cable television, (5) and some are even pushing for the inclusion of internet and satellite radio in new legislation. (6) According to Adam Thierer, director of telecommunications studies at the Cato Institute: "[T]he fight is hardly over. Several members of Congress have hinted that they will continue to push for traditional broadcast regulation to be imposed on new, subscriber-based media outlets." (7) Meanwhile, some still stand for the proposition that indecency should not be regulated at all. (8) Both arguments compel a departure from the "public broadcasts/private subscriptions" and "public airwaves/private means of transmission" distinctions. Legal precedent, which emphasizes the pervasiveness of the medium in supporting the distinction, (9) is so established that elimination of the distinction on which media programmers rely cannot be taken lightly. However, after examining the history of broadcast regulation in Part I, this Note contends that the pervasiveness and growth of the unregulated newer media are sufficient to demonstrate that the two-tier system of First Amendment protections is increasingly outdated. The relationship between citizens and broadcasters has changed, and the logic that originally singled out broadcasting for strict indecency regulation as distinguishable from other media no longer withstands scrutiny. Part II makes the case that cable television is now sufficiently pervasive that it no longer merits special protection as a subscriber service. Part III describes how the "new media"--satellite and internet radio--share many characteristics with cable television. …