Daniel Brenner


In 1973, cable television operators primarily carried broadcast signals that could not be received adequately over the air. That year, a Cabinet-level committee recommended that regulation of cable fundamentally change when the cable industry penetrated fifty percent of U.S. homes. Instead of selecting any of their program services, the cable operators would be treated as pure carriers, leaving others to program. 1 The United States recently passed that supposed milestone. 2 Yet the 1973 policy recommendation is about as likely to get a second hearing as the Articles of Confederation. By 1975, Home Box Office had launched cable's first satellite network; the dozens that followed have created a cable-based program industry. Like other industries that eventually found themselves under pervasive regulatory schemes, cable television developed before a national policy was in place as to who should regulate it, and what that scheme should be. 3 Cable did not fit comfortably into the scheme established for carriers like telephone companies, 4 entities historically indifferent to their messages and not thought to be engaged in "speech" or "press" activities protected by the first amendment. Nor, given its significant distribution function, did cable television exactly fit the mold of providers of original expression like newspapers, motion picture exhibitors or producers, and book publishers. And the spectrum scarcity-based broadcast model ill suited a medium of potentially limitless channel capacity. Congress decided some of these definitional questions in the Cable Communications Policy Act of 1984. 5 A series of lawsuits, however, is ...

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