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Over the air broadcasting’s effort to have new regulations placed on cable got a boost from Rep. Joe Barton, R-Texas, head of the House Energy and Commerce Committee. Speaking before a recent NAB gathering, Barton said, "It's not fair to subject over-the-air broadcasters to one set of rules and subject cable and satellite to no rules."

The issue of restricting broadcasters’ ability to transmit certain types of programming and not that of cable has always been a sore spot for broadcasters. Tradition has held that because of broadcaster use of “the public’s spectrum” a more strict set of restrictions could be applied than those for cable, which is a subscription service.

However, in light of increasingly vocal conservative viewpoints, Congress has begun to listen to viewers. Several bills were offered in the last session that would have subjected cable to broadcast-like regulations. It was only through the pressure of then FCC Chairman Michael Powell that the commission did not take up the issue.

Eddy Fritts, president and CEO of the NAB has long argued that the public doesn’t know what’s off-air and what isn’t. "If a 5-year-old uses the clicker ... he can't differentiate between the over-the-air signals and a cable signal," he said.

At the same NAB meeting, Sen. Ted Stevens, R-Alaska, head of the Senate Commerce, Science and Transportation Committee echoed a similar viewpoint. "In this country, there has to be some standards of decency”. He submitted that today’s viewers don’t know the difference between a signal that arrives directly from a TV station and one relayed to their TV set via the cable company. Why then should one signal be regulated and the other not, he asked.

For years, cable has been able to claim an exception from such regulations on the basis of a 2000 Supreme Court ruling that cable was exempt from obscenity regulations under the Constitution’s First Amendment. The ruling was based on a challenge by the cable industry’s objection to the 1966 attempt by Congress to bring cable under obscenity laws. The law attempted to restrict sex-oriented networks like the Playboy Channel to broadcasting only during late-night hours unless the signals were scrambled, even if cable was a subscription service.

The cable industry has mostly sidestepped the regulation by simply making such channels a premium service. Once the viewer subscribes to the service, they have little ground to complain about it coming into their homes.

While OTA broadcasters continue to seek help from Congress to impose new rules on its wired competitor, the cable industry has been highly successful in avoiding restrictions and taking cover in actions by the Supreme Court.

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