> This raises the question of how long it might be before The
> FCC determines that "radio stations" "broadcasting" on the
> public airwaves via wireless internet are, indeed "radio
> stations" and fall under their regulations. After all, the
> connection for many will be through "the public airwaves".
>
> When it happens (I don't see any "if" about it) what will
> the spectrum fees be? What content will be prohibited?
> What fines might be imposed for "indecency"?
This is actually an interesting point, and one in which I have written briefly and have investigated in the course of writing a legal critique of Pacifica, the Supremes' reasoning behind it, and the overall indecency regulation scheme at the Commission.
The Pacifica v. FCC decision (1978) was grounded upon the "pervasive" nature of broadcast radio/TV--that is, it was openly available by merely turning on a receiver and by the time obscene or indecent content passed through the air, it was too late to make amends if children or non-interested audiences were listening.
In the realm of other delivery systems (cable, internet, satellite), the Supreme Court has concluded (rightly) that affirmative steps need to be taken to reach the content or programming offered by those other sources. (See, e.g., Sable Communications (1988), Playboy TV (2000), ACT III (D.C. Cir. 1993), and the COPA case--sorry forget the caption right now--from 2001).
It is the same for Internet "radio" (which it isn't, really, but it's good shorthand). Affirmative steps must be taken to get to that programming on those Internet stations: turning on the computer or future "media source," connecting to the network (even if automatically), opening the web browser, typing the address, connecting to that page, choosing the link, and starting the media player to connect to the source server. Seven (or seven and 1/2 steps).
Broadcast (over-the-air) radio has two steps: turn on radio, tune to station. It is no more involved than that because the FCC-licensed (and unlicensed stations, to be equal opportunity) are freely distributing their content into the available air. The radio does nothing more than pick up that "air". So, in all actuality, step 2 above (tuning) is not even required.
Further, the FCC would need Congressional authorization to regulate Internet content. It does not have such authority now, and the courts would be pretty leery of such authority at such a late stage in "the game". The Internet has been a fairly unregulated universe thus far. The Congress has had numerous opportunities to regulate it and it has failed to do so. I dare say that we are reaching precariously close to "tradition" stage which would persuade the courts to preclude the Congress or Executive to stay out of the arena at all.
Further, on First Amendment grounds, I can't see the courts allowing the FCC to essentially license that which was/is freely available. Remember one reason for FCC regulation over broadcast is "scarcity"--there's only so much space available in the band, so we have to regulate it to allow everyone an equal chance at it. There is no such limitation in the Internet. "Scarcity" is established only by the market's artificial limits, and not by physics of nature.
One more point: I seriously doubt the FCC can "piggyback" their regulation of the Internet (without explicity Congressional authorization) based solely upon the fact that delivery is SOMETIMES by "public airwaves". The licenses for that space have been granted to the ISPs, the wireless manufacturers, the router mfgrs., etc. Therefore, the FCC has already regulated to the extent of its current authorization. As a creature of Congress, even though "independent," it is still limited by what authority is given to it by Congress. It may not exceed that authority into avenues which Congress has not given it authority to regulate, or which Congress could not have reasonably envisioned the FCc to enter.
I think that's an interesting hypothesis (and one which, no doubt, some FCC egghead in Washington had concocted already), but I think it fails for the above reasons and more.
If nothing else, I'd fight it myself.
