Space, the final frontier--expanding FCC regulation of indecent content onto direct broadcast satellite.

I. INTRODUCTION II. CONTENT REGULATION AND CALLS FOR EXPANSION

A. Pressure to Extend Broadcast Indecency Regulation to

Cable and DBS.

B. Current Content Regulation

C. The Commission's Longstanding Refusal to Extend Its

Indecency Regulations to Subscription Media III. POSSIBLE STATUTORY BASIS FOR FCC REGULATION OF

INDECENCY ON DBS

A. Regulation of DBS and Cable Under [section] 1464 of the

Criminal Code or Section 1 of the Communications Act..

B. Regulation of Indecent Content on DBS in the Licensing

Context IV. APPELLATE REVIEW OF BROADCAST INDECENCY

REGULATION AND ITS IMPLICATIONS FOR DBS AND CABLE

V. SUPREME COURT DECISIONS ADDRESSING REGULATION OF

CONTENT ON CABLE AND THE INTERNET AND THEIR

APPLICABILITY TO DBS

A. Turner Broadcasting Systems v. FCC

B. Denver Area Educational Telecommunications

Consortium, Inc. v. FCC

1. Section 10(a)

2. Section 10(b)

3. Section 10(c)

C. United States v. Playboy Entertainment Group

D. The Internet Cases: Reno v. ACLU and Ashcrofi v.

ACLU VI. THE FIRST AMENDMENT RIGHTS OF DBS PROVIDERS VII. CONCLUSION

I. INTRODUCTION

Dating back to the Radio Act of 1927, Congress has prohibited the presentation of indecent programming by over-the-air broadcasters. While Federal Communications Commission ("FCC" or "Commission") enforcement of its indecency prohibition has been generally infrequent and low-key, the climate changed dramatically in 2004, when there was an explosion of viewer and listener complaints against radio and television stations and a concomitant increase in FCC enforcement action.

Nearly three decades ago, the Supreme Court, recognizing that indecent speech is entitled to First Amendment protection, nonetheless upheld over First Amendment challenges the Commission's authority to regulate indecent programming on over-the-air broadcast stations. According to the Court, the "uniquely pervasive presence" of the broadcast medium in American life and the fact that broadcasting is "uniquely accessible to children" warrant limitation of the First Amendment rights of broadcasters. (1)

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 broadcasting. (2) 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.

II. CONTENT REGULATION AND CALLS FOR EXPANSION

A. Pressure to Extend Broadcast Indecency Regulation to Cable and DBS

The Janet Jackson "wardrobe malfunction" in early 2004 ignited a crusade against broadcast indecency by various citizens' groups, such as the Parents Television Council ("PTC"). (3) After successfully inciting greater FCC enforcement action against broadcasters (primarily by inundating the agency with form complaints), these groups took aim at the cable and DBS industries. On February 1, 2005, the PTC launched a campaign to call attention to indecent content on basic cable at a press conference on Capitol Hill. (4)

Lawmakers in both the House and Senate have also called for a crack down on cable and satellite indecency, while urging these multichannel video program distributors ("MVPDs") to provide consumers with better programming options. At one point, Senator Ted Stevens, then-Chairman of the Senate Committee on Commerce, Science, and Transportation, and others voiced strong support for regulating indecency on cable and DBS. (5) However, using the threat of legislation, Senator Stevens began to favor industry action such as the creation of "family tiers" that would exclude more objectionable programming channels. (6) In addition, Senators Rockefeller and Hutchison introduced S. 616, the "Indecent and Gratuitous and Excessively Violent Programming Control Act of 2005." S. 616 not only sought to expand current broadcast indecency penalties, but also to apply them to cable and DBS providers. The bill also would have regulated "excessively violent" video programming and supplanted the current, voluntary indecency rating system. (7) More recently, legislation was introduced in the House that would require cable and DBS operators to accept broadcast indecency standards or, in the alternative, enhance access to family-friendly programming with expanded family tiers or by offering subscribers the ability to select individual channels. (8)

Suggesting that the Commission will take its lead from Congress, Chairman Martin, in his first speech as Chairman, said that "the Commission is a creature of Congress, and it's Congress that ends up trying to determine whether or not the rules on indecency should be applied to cable." (9) While it appears that any new indecency laws will come from Congress rather than the FCC, Chairman Martin nevertheless has publicly pushed for cable and DBS to agree voluntarily to address the problem. (10) At a forum on decency held by the Senate Commerce Committee in November of 2005, the Chairman testified that he has "urged the industry to voluntarily" offer family-friendly programming packages or to accept indecency restrictions on their basic tier of programming. (11)

While appearing before Congress in April of 2005, Chairman Martin was asked what he thought about the regulation of indecency on satellite radio, and he said, "whenever you talk about applying any kind of indecency to a subscription service, it raises constitutional concerns." (12) Commissioner Adelstein has also expressed similar concern about extending indecency regulation to satellite services:

Right now everybody is concerned about indecency.... But if a

person can find less restrictive means to prevent exposure then the

govt. can't impose restrictions on free speech.... [I]t's very

difficult to move in that direction.... We run into major

constitutional issues. (13)

In an apparent attempt to stave off the new push for cable content regulation, the National Cable & Telecommunications Association ("NCTA") launched a comprehensive $250 million campaign "to help families manage their home TV viewing and protect children from programming their parents may find inappropriate for them." (14) Not surprisingly, the PTC immediately attacked the campaign and cited a previous study it conducted alleging that the current ratings system is deficient. (15) The cable industry claims that these attacks are unfounded because of plans to improve the ratings system by implementing a number of enhancements.

The TV ratings icon that is displayed on the upper left portion of

the TV screen for the first 15 seconds of rated programs will be

enlarged by 70 percent so it is more visible to the viewer.

Coming out of every commercial break, cable networks will begin

inserting a TV ratings icon on the screen to alert viewers of the

TV rating throughout the program. (16)

In addition, "[c]able networks will provide on their websites [sic] information about the TV ratings system including program ratings in their online TV schedules and descriptions of the ratings system, and the V-chip." (17)

More targeted blocking based on ratings is possible because of the congressionally mandated V-Chip. As part of the deployment of the V-Chip, in 1997, the Commission approved voluntary guidelines submitted by the entertainment industry to rate programming that contains sexual, violent, or indecent material and implemented a system to facilitate the transmission of the ratings in such a way that enables parents and other consumers to block the display of programming they determine is inappropriate for them or their children. (18)

DBS similarly provides a full range of robust parental content controls. In addition to passing through the V-Chip ratings, DIRECTV provides every customer with a free "Parental Controls" feature, which enables parents to restrict access at designated times to certain programming and to specific channels they consider inappropriate for family members. (19) DISH offers a similar service with parental control features. (20) These systems supplement the ability of cable and satellite to block completely any specific channel.