On March 3, 2009, President Obama formally announced his intent to nominate Julius Genachowski to be Chairman of the Federal Communications Commission (“FCC”).  President Obama said, “I can think of no one better than Julius Genachowski to serve as Chairman of the Federal Communications Commission.  He will bring to the job diverse and unparalleled experience in communications and technology, with two decades of accomplishment in the private sector and public service . . . .”

On November 4th, 2008, the Supreme Court heard oral arguments in the potentially historic free speech case of Federal Communications Commission v. Fox Television Stations, Inc. This case, which originated in the Second Circuit Court of Appeals, deals with the FCC’s new policy for “fleeting expletives” on broadcast television. The FCC lost and appealed to the Supreme Court. By contrast, the so-called “Janet Jackson case”—CBS v. FCC—was heard in the Third Circuit Court of Appeals. The FCC also lost that case and has also petitioned the Supreme Court to review the lower court’s ruling....

Back in the 1980s and 1990s, when the only way to get television programming was through cable or over-the-air broadcast, Congress decided that the cable industry had too much market power. In response, Congress enacted several restrictions on cable operators’ ability to decide what programs to carry, including: (1) “must-carry” rules, requiring cable operators to dedicate some channels to carrying local broadcast stations, (2) “PEG” rules, requiring cable operators to dedicate other channels to public, educational, and governmental programming, and (3) “leased access” rules, requiring cable operators to dedicate yet other channels for unaffiliated commercial programmers who were unable to convince operators to carry their programs voluntarily....

The broadcast Fairness Doctrine, which formally existed from 1949 to 1987, required broadcast licensees to air “controversial issues of public importance” and to do so in a “balanced” way. Th e FCC eliminated most aspects of the policy in 1987 during the heyday of Reagan administration deregulation. At least in spirit, the Fairness Doctrine has remained an article of faith among those who believe that freedom of expression is far too precious a commodity to be left in the clutches of private hands. “Fairness” enthusiasts have tended the glowing embers of a philosophy of the First Amendment and broadcast regulation that once was at full fl ame in the 1969 Supreme Court decision Red Lion Broadcasting Co. v. FCC.  They have nurtured the fervent hope that, one day, a more regulatory-minded Congress and FCC would reaffi rm the government’s authority to oversee news and public aff airs programming. Some believe that with the Obama administration their day has come....