Two justifications have generally been offered for the FCC's authority to promulgate indecency regulations for broadcast media: The Scarcity Doctrine holds that the airwaves are a limited public resource which the government may license with restrictions and subject to continuing oversight on the public's behalf; the concept of pervasiveness holds that where the nature of a medium is such that the general public cannot be reasonably expected to avoid it, the government may regulate indecent content on that "pervasive" medium. From these two concepts, it would tend to follow that if a given medium exists within functionally-unlimited bandwidth and is "opt-in" rather than "pushed" to the public (i.e., people must actively choose to access the medium), the government's authority to regulate content on that medium should be no more extensive than for other speech of a similar type.
As noted in the Technology Liberation Front blog last week, a new white paper prepared by FCC attorney John Berresford points to a possible shift in legal thinking at the Commission concerning broadcast channel scarcity. Amongst the conclusions of the paper, as related by TLF, are these:
Still, whether the initial justification for broadcast regulation was a valid one in retrospect is largely beside the point now; these regulations are so entrenched in the public's mind, the political environment, and the broadcasting business itself that, as recognized by TLF commenter Andrew McGuinness, the "government department's reaction to finding its doctrine is dead is more likely to be to find a new doctrine than to stop regulating." The value in questioning this justification is in limiting its application to the broadcasting environment and thus preserving the status quo.
(1) the scarcity the government complained of was “largely the result of decisions by government, not an [unavoidable] fact of nature.” In other words, the government’s licensing process created artificial scarcity.
(2) a system of exclusive rights would have ensured more efficient allocation of wireless resources.
(3) even if there ever was anything to the Scarcity Doctrine, there certainly isn’t today in our world of information abundance.
Although Berresford's paper takes the doubts about the Scarcity Doctrine to their logical conclusions, these doubts have floated around the FCC for some time. Starting with the Supreme Court's decision in FCC v. Pacifica Foundation, the agency has sought to shore up the inherent weaknesses in the scarcity argument by using the concept of broadcast pervasiveness described and approved by the Court in Section IV(C) of the Pacifica majority opinion (citations omitted):
[T]he broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder. Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place.
Since Pacifica was decided in 1978, however, technology has produced tools which make such avoidance, at least as to cable and satellite television signals, both possible and widely-accepted and, for these reasons, eminently reasonable for individuals to choose or not choose as they see fit: for five years now, new televisions contain "V-Chips" which permit parents to allow only broadcast programming with particular ratings into their homes; the existence of the underlying ratings system allows program-by-program advance evaluation even without a technical filter like the V-Chip; set-top boxes which decode satellite and cable programming for subscribers have long allowed users to set "favorite" channels and block offensive ones; finally, the threshold decision whether to subscribe to pay television at all, and if subscribed which of the hundreds of channels offered to select are principally an individual's own.
The "individual's right to be left alone", which so concerned the Pacifica Court, can thus be defended on multiple levels by individuals themselves, without further "assistance" by governmental actors. In recent years, the FCC has indicated a clear desire to regulate deemed-indecent materials on broadcast channels; some in Congress now seek to extend those regulations to cable and satellite programming. Notwithstanding, where individuals already possess several adequate methods to filter their own exposure to materials which each finds offensive by his or her own standards, such regulation is not appropriate. Such is the case with cable and satellite programming, media which are neither scarce nor pervasive by traditional standards.
[Update]
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