"My guess is that you'll see NBC shift even more of its news coverage to cable [its CNBC and MSNBC channels] and the other two networks step up the search for cable outlets to do the same," Carlson said. "Five years from now, I bet all three nightly broadcasts will look a lot more like '20/20,' or 'Dateline.' "
• Supremely indecent: The FCC asked for and Congress drafted legislation to increase the maximum fine for indecency to $500,000, but it stalled before recess. The measure has bipartisan support, and lawmakers and broadcasters expect it to pass in 2005, though probably at a lower fine amount.
A trade group expects 7 million high-definition televisions to be shipped by the end of 2005, adding to the almost 10 million already in U.S. households.
(Daniel Acker -- Bloomberg News)
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The bigger story may happen in the courts, however.
A number of policymakers and First Amendment scholars are expecting -- and broadcasters are hoping -- that the Supreme Court will reconsider two rulings that allow the government to police the airwaves.
The FCC can fine broadcasters for indecency and can require public-interest obligations, the court has held, because the radio and television airwaves have a limited amount of spectrum and cannot support an infinite number of stations. Also, because radio and television waves are "uninvited visitors" into homes -- meaning they can be received free -- the government is within its rights to protect children from objectionable programming.
Both rulings, however, came before the explosion of cable and satellite networks, which gave television and radio audience members a wider variety of programming. Over-the-air television channels account for fewer than 10 of the more than 100 channels available on most pay systems. Also, now that fewer than 15 percent of television viewers do not subscribe to pay television -- cable or satellite -- few homes have "uninvited visitors."
The government has no authority over cable or satellite networks and, late last year, Fox Broadcasting Co. argued that this double standard is unfair when asking the FCC to drop a $1.2 million indecency fine against the network. If the FCC upholds the fine, Fox is likely to take the case to the Supreme Court.
"Make no doubt about it -- if the industry gets serious enough about this and mounts a major challenge to the indecency rules [and] fines, it would represent the best chance in years for the courts to reevaluate" the indecency rulings, said Adam D. Thierer, the Cato Institute's director of telecommunications studies. Further, he said, "if the Republicans are so foolish as to adopt direct indecency regulations for cable . . . it would be a killer case to tee up" the indecency rulings.
Broadcasters bemoan what they call the "antiquated system."
"If Congress doesn't fix it, we will continue to have bizarre results," said Andrew W. Levin, chief legal officer for radio giant Clear Channel Communications Inc., which settled all of its outstanding indecency fines with the FCC last year with a $1.75 million payment. "For example, an NFL running back can let the f-word loose live on ESPN and the FCC is apparently powerless. The same word could cost CBS Sports $300,000. It makes no sense and certainly does nothing to protect kids, which is the whole point in the first place."
How will network writers and producers respond to the heightened government pressure on indecency?
"The return to twin beds for married couples of television," a Hollywood studio executive deadpanned.
• Full-court press: Legal battles between the technology and content industries are expected to continue, as film, television and music makers try to protect their copyrighted material and electronics makers and technologies (such as peer-to-peer file-sharing systems) seek to give consumers more ways to get and use content.
In March, the Supreme Court is set to consider whether peer-to-peer services such as Grokster are liable for illegal activity -- such as downloading and sharing copyrighted work -- committed with them. Grokster argues that it is protected by the Supreme Court's 1984 "Betamax" decision, which found Sony was not responsible for bootlegged videotapes made on its machines as long as they could be used for legal activities.
"2005 is the year in which the Supreme Court decides whether consumers control their movies, music and the Internet or whether the cable and phone companies and the Hollywood studios control what you get to see, hear and find on the Internet," said Gene Kimmelman, senior director of public policy and advocacy at Consumers Union, the nonprofit organization that publishes Consumer Reports magazine.
