After years of failing to meet expectations, both internet and satellite radio programming are finally challenging terrestrial radio1 in a manner similar to cable’s challenge to broadcast television a generation earlier; these new technologies threaten to hijack market share and revenue from a traditional broadcast medium much as cable did.2 Broadband technology enables one to broadcast talk radio and music over the internet to reach listeners via their personal computers. Satellite broadcasters use a pay model, selling special radios for listeners to tune into digital satellite programming. Online and satellite stations are increasing their audiences while traditional radio has struggled for over a decade to maintain its audience. The recent high-profile signing of Howard Stern by Sirius Satellite Radio and the 43% average yearly growth in listeners that internet radio has experienced since 2000 have pushed these new media to the forefront of popular culture.3 As they continue to seek new listeners, online and satellite stations share an additional advantage over terrestrial broadcasters that again merits comparisons to cable—they are exempt from Federal Communications Commission (FCC) scrutiny for indecent programming. Satellite and internet radio fall into the same category for indecency regulation as cable television, which enjoys stronger First Amendment protections than the broadcast networks because of the legal distinction between free services and optional, subscription-based services, and because broadcasting uses limited public airwaves.4 While this distinction may once have enjoyed overwhelming public support, Congress has begun to examine the issue of eliminating the regulatory distinction between broadcast and non-broadcast media. Legislators have raised this issue with the hope of extending regulations to cable television,5 and some are even pushing for the inclusion of internet and satellite radio in new legislation.6 According to Adam Thierer, director
