This Article explores the First Amendment implications of the Federal Communication Commission's (FCC) regulations issued under the Cable Television Consumer Protection and Competition Act of 19921 (1992 Cable Act). The 1992 Cable Act imposes numerous requirements that are beyond the scope of this Article. This Article analyzes only the FCC's exercise of rule making discretion under the 1992 Cable Act.
Additionally, it must be remembered that an under-staffed FCC was given an enormous amount of work to do within fixed time limits. Therefore, it must be expected that the rulemaking would be vulnerable to second-guessing. Nonetheless, whenever a governmental entity regulates communications, sensitivity to First Amendment concerns is mandatory. Moreover, the FCC serves in part as an explicator of electronic communications law. Thus, the FCC's. analysis impacts on innumerable other discussions and decisions concerning free speech.
I begin my discussion with an analysis of the general scope of the power of agencies to consider the constitutionality of legislation. Next, I explore two particular areas of FCC rulemaking, indecent programming and home-shopping, to consider the impact of the FCC's rules and the underlying First Amendment implications.
The First Amendment and FCC Rule Making under the 1992 Cable Act, 17 Hastings Comm. & Ent. L.J. 179 (1994-1995)