First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In addition to having responsibility for regulating broadcast radio and television, the Federal Communications Commission (FCC) regulates telecommunications service providers. Though they share a common regulator, broadcast media and telephone communications serve different purposes and use different technologies. The Supreme Court relied on these differences in Sable Communications of California, Inc. v. FCC, a case in which the Court partially struck down a ban on indecent and obscene commercial telephone messages.1 The FCC attempted to justify this ban in part by relying on its authority, upheld in FCC v. Pacifica Foundation, to regulate indecent broadcasts on radio and television.2 The Court observed that Pacifica “relied on the ‘unique’ attributes of broadcasting,” which the Court noted are “substantially different” from private telephone communications.3 Among these differences is that broadcast media are “uniquely pervasive,” and particular messages “can intrude on the privacy of the home without prior warning as to program content.” 4 In contrast, the telephone communications addressed by the ban, which focused on dial-in services paid for by a calling individual, require “affirmative steps to receive the communication.” 5 Thus, the more relaxed First Amendment standards that may allow greater regulation of broadcast media do not apply to regulation of telephone communications, despite both media falling under the FCC’s jurisdiction.

Footnotes

1

492 U.S. 115 (1989). The Court upheld the ban as applied to obscene communications. Id. at 124. See generally .

2

Id. at 127 (citing FCC v. Pacifica Found., 438 U.S. 726 (1978)); see for more discussion of this case.

3

Id. at 127–28.

4

Id. at 127.

5

Id. at 128.