Volume 60; 2007-2008 • Issue 1

Table of Contents

Editor’s Note

Commentary

Expansion of Indecency Regulation
Hon. Kevin J. Martin, Adam G. Ciongoli, Robert W. Peters, Roger Pilon, & Hon. David B. Sentelle
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
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.

In the Dark: A Consumer Perspective on FCC Broadcast Indecency Denials
By Genelle I Belmas, Gail D. Love, & Brian C. Foy
Indecency regulation has been a hot political and social topic since Janet Jackson revealed her breast during the 2004 Super Bowl halftime show. The number of indecency complaints the FCC receives each year continues to rise. Moreover, to further complicate matters, in 2007 the Second Circuit overturned the Federal Communications Commission’s (FCC) policy that so-called “fleeting expletives” would be considered indecent. However, there has been no systematic review of the complaints from the perspective of the complainant. How has the FCC managed its increasing indecency complaint load, and what does it tell consumers who have taken the time to write formal complaints about what they perceive to be indecent programming? The authors obtained indecency complaints about broadcast programming received and denied by the FCC in 2004 through a Freedom of Information Act request. The nature of the complaint, geographic area, and FCC response were examined from the standpoint of the consumer. The authors make several suggestions to improve the FCC’s handling of its increasing load of indecency complaints and its correspondence with the complainants. The authors also take a critical look at activist groups and their effect on the complaint process.

Notes

Deal or No Deal: Re-interpreting the FCC’s Foreign Ownership Rules for a Fair Game
By Cindy Cho
With the changing racial and linguistic composition of the American market and the emerging strength of the Mexican market, American broadcast companies are facing a new competitive playing field. Section 310 of the Communications Act of 1934 (“Act”) establishes the guidelines for when a foreign national is eligible to apply for a broadcast license from the FCC. The FCC currently interprets these limits on foreign ownership very leniently, favoring a policy of deregulation in an attempt to further open up the United States market. This Note argues that once foreign nationals have cleared the hurdle of Section 310’s foreign ownership requirements, the licensing standards under Sections 301 and 307 are weakened, allowing foreign applicants to engage in anticompetitive behavior in order to obtain broadcast licenses over domestic applicants.

Rethinking the Communications Decency Act: Eliminating Statutory Protections of Discriminatory Housing Advertisements on the Internet
By Jim Shanahan
The recent decision in Craigslist signals a drastic reduction in the effectiveness of the prohibition on discriminatory housing advertisements under the Fair Housing Act (“FHA”). Section 230 of the Communications Decency Act gives blanket immunity to Internet Content Providers from publisher liability for content originating from third parties. One of the effects of this immunity is the creation of a monopoly for discriminatory advertisements otherwise proscribed by the FHA. This Note argues that the simplest solution for Congress is to adjust the language of Section 230 by adding the FHA to the list of exceptions to statutory immunity.

Book Review

Summing Up the Public Interest: A Review of “Media Diversity and Localism: Meaning and Metrics”, edited by Philip M. Napoli
By Victoria F. Phillips
Philip Napoli’s “Media Diversity and Localism: Meaning and Metrics” is a thoughtful and first of its kind compilation of some of the ongoing research and scholarship examining the concepts of diversity and localism underlying the Federal Communications Commission’s public interest standard in broadcasting. The collection of essays addresses these fundamental goals from a variety of disciplines beyond the law, including political science, communications policy, sociology, and economics. The essays explore the values associated with these two goals, apply performance metrics to assess existing regulatory policies intended to preserve and promote these goals, and reflect on their meaning in the new media landscape and for current communications policy and decision-making. The volume provides a scholarly foundation for assessing some of the central questions in the ongoing media policy debates.

Forum

Sins of Omission and “A Line-Drawing Exercise”: A Response to FCC Chairman Kevin Martin’s Comments on the “Expansion of Indecency Regulation”
By Clay Calvert

Indecency, the First Amendment, and the FCC
By Robert M. O’Neil

Chairman Kevin Martin on Indecency: Enhancing Agency Power
By Lili Levi