The new paradigm for American broadcasting – changing the content regulation regimen in the age of new media

Abstract

American radio and television broadcasting is at a crossroad, caught in the midst of a realignment of the media landscape. No longer the dominant medium, radio and television broadcasting has become a cog in a vast cornucopia of delivery systems, such as cable, satellite, Internet and wireless. Licensed to a specific radiomagnetic spectrum through the Federal Communications Commission, broadcasters were subject to greater content regulation than those in other media. In the past the courts have upheld such regulations – including those which mandated stations to provide reply time for those attacked in editorials and others which restricted communications deemed to be ‘indecent’ – have survived First Amendment attack for one or two rationales: first, that the medium is inherently scarce and second, that it is ‘pervasive’. In the last 10 years, some judges have cast doubts about this argument and in so doing, feel that American (US) broadcasting should be freed from such regulatory restrictions. This article presents the arguments in favor of treating radio and television licensees as full-fledged members of the free speech sphere. It further argues that in the broadband era, distinctions between broadcasters and other content providers are increasingly irrelevant and that radio and television are no longer as dominant.