"Raised Eyebrows" Over Satellite Radio: Has Pacifica Met its Match?

Abstract

The issue presented in this Article is the dichotomy between broadcast radio and satellite radio, and how these two media regulate indecency differently. While broadcast has limited First Amendment protection, satellite promises more free speech freedom. In spite of this framework, the basic guidelines regarding FCC regulation of indecent speech have changed little since the landmark 1978 Supreme Court case, FCC v. Pacifica Foundation. Since then, a lot has changed: cable and broadcast television are virtually indistinguishable; and only in 1992 did the FCC allocate the spectrum for use by satellite radio, XM and Sirius receiving their licenses to operate in 1997. Consequently, "the Stern move may expose traditional radio's Achilles' heel: Stations' free use of the airwaves makes them subject to unique content regulations by the Federal Communications Commission." The differences in regulation are now becoming apparent, and if satellite radio fails to comply with the "raised eyebrow" technique, then these differences may become obsolete. Satellite radio remains uncharted territory for First Amendment rights in an era when different media formats are becoming equally as pervasive as broadcast. And the ongoing concerns for children may tip the balance in favor of equal regulation, even though we pay for satellite subscription. Despite the plausible argument that satellite radio could become a direct substitute for terrestrial radio, Pacifica is still not overruled, and the FCC has no option but to regulate new media with a "raised eyebrow."

This Article will discuss whether the FCC has enough authority over free speech to regulate indecency on satellite radio, or rather, indirectly coerce [like they did with Howard Stem, by pushing him off the air] via "raised eyebrow" in instances when direct regulation would violate the First Amendment, and without the need for a new Supreme Court ruling. Part II of this Article discusses the historical background, covering the development of the FCC, the growth of satellite radio and the regulation of content with respect to the First Amendment impact on various forms of media. Part III will examine the current state of the law, whether the regulatory concerns are being addressed, and offer a number of solutions-including less restrictive alternatives by means of "raised eyebrow" Part IV will conclude the comment, resulting in my belief that Howard Stern should be regulated, but not in any manner which would require the Supreme Court to expand the Pacifica ruling to satellite radio. Instead, the answer lies in a so-called threat to impose fines and apply like rules. The truth is, the FCC can regulate indecency on satellite radio, but is choosing not to at this point in time. It can also do so in a more Constitutional way than it can cable television, because satellite radio uses the airwaves. Thus, either Howard Stem is talking a lot of hype or the satellite radio industry will address the threat by self-imposing less restrictive means to accomplish the FCC's legitimate concerns. Otherwise, if Howard pushes the envelope too far, the FCC has its "eyebrows raised" over satellite radio and the Court may seek to revisit Pacifica.