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Satellite Radio May Not Escape FCC Restrictions
By Paul Heine
NEW YORK (Billboard) - With envelope-pushing air talent like Howard Stern and Opie & Anthony flocking to the less-restricted refuge of satellite radio, could the Federal Communications Commission (news - web sites) be far behind?
Specifically, could the FCC (news - web sites) enforce its indecency rules -- which Stern claims drove him away from terrestrial radio -- on satellite radio too?
That's exactly what Saul Levine is hoping for. On Oct. 29, Levine, the president of Mt. Wilson FM Broadcasters, filed a Petition for Rulemaking to amend Part 25 of the FCC's pending satellite radio rules to include an indecency provision.
While legal experts say subscription radio enjoys deeper First Amendment protections than free radio, Levine's petition argues that the FCC is, in fact, empowered to enforce indecency rules on satellite radio and asks the commission to "level (the) playing field."
Why is Levine convinced the FCC has such power when the satellite radio industry -- which is incurring millions of dollars in new losses to hire indecency's biggest offenders -- is not?
RULES OF THE GAME
According to Levine's petition, the FCC already has subjected satellite radio to Equal Employment Opportunity and political broadcasting rules and policies. What's more, the petition says, the type of radio service (i.e., broadcast, common carrier, etc.) "is not a relevant consideration" in the imposition of programing or public-interest rules, nor is whether satellite radio operates as a broadcast or subscription service. In fact, the FCC put satcasters on notice in 1997 that it "may adopt additional public-interest requirements at a later date."
Levine -- the owner of KUSR-AM Beverly Hills, Calif.; KTIM-AM Piedmont, Calif.; and classical KMZT-FM Los Angeles -- also contends that satellite radio is subject to Title 18 of the U.S. Code, Section 1464, which prohibits broadcasting indecent material between the hours of 6 a.m. and 10 p.m.
Bolstering his case is the fact that some spectrum that satellite operators use was granted without an auction, placing it in the province of the public airwaves. Since that slice of spectrum was borrowed, not bought, it belongs to the people and, the argument goes, the FCC can attach indecency regulations to it.
Andrew Schwartzman of the Media Access Project agrees that the FCC has the authority to apply the indecency statute to satellite. But, he adds, "to do it, they would have to change their own current rules, and I'm not so sure they would do it on their own, without pressure from Congress.
"The Communications Act defines subscription service broadcasting differently than broadcasting," Schwartzman says. "The FCC has the power to change that. ... (Whether it would) hold up in court is another matter."
POWER OF PERSUASION?
John Crigler, a communications attorney with Garvey, Schubert & Barer, says Levine's argument "won't be enough to persuade the FCC that it nevertheless should exercise that authority."
The FCC, Crigler notes, has all kinds of latent authority. For example, it has had jurisdiction to regulate indecency and profanity since passage of the Communications Act of 1934 but did not act on indecency until the 1970s and did not declare any broadcast profane until this year's controversial decision regarding U2 singer Bono uttering an expletive during the 2003 Golden Globe Awards (news - web sites).
The issue is "not whether or not the commission might have this latent authority but whether or not there is enough political impetus at this point to exercise that authority," Crigler says.
Were the FCC, at the behest of Congress, to extend indecency enforcement to satellite radio, it may be inconsistent with the Constitution.
"It's the First Amendment that is the more severe limitation on what the FCC can do," Crigler says.
WE THE PEOPLE
Squaring indecency restrictions on subscription radio with the First Amendment could be difficult. When the Supreme Court upheld the FCC's power to regulate indecency in the landmark Pacifica case of the 1970s, it cited the "pervasive" nature of free, over-the-air broadcasting to justify its ruling.
But the "pervasiveness" argument breaks down when talking about satellite radio, a Senate staffer familiar with the issue says.
"Satellite radio is a paid service," the staffer says. "You elect to have it, you elect to buy it and you elect to turn it on. It's something that you choose."
First Amendment attorney and former FCC counsel Bob Corn-Revere, who wrote the recent Viacom reply brief in the indecency case over the Janet Jackson (news) incident at the Super Bowl, agrees that it would be difficult for the FCC to act on indecency in the satellite realm. "The FCC doesn't have the authority to write unconstitutional rules," Corn-Revere says.
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