What will Howard say about this?
"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.'
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.'
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."
The FM industry's actions are understandable. You've got to pull out all the stops when you have tons of money invested in a miserable product that's turned a profit only because it was the only game in town. Shutting down Howard Stern and the other satellite refugees doesn't address the fact that listeners don't appreciate being assaulted by twenty-plus minutes of commericals and brain-dead DJs every hour, but you do what you can.
It's a loser in court, of course, but that doesn't mean a lot of lawyers and lobbyists can't get rich kicking it around congress and the FCC first. Even if the sat radio folks get pummeled in the early rounds by the well-financed FM trade groups and right-wing decency groups, though, other folks with dogs in the fight--like, say, the extremely well-financed cable television industry--won't let this get very far before they squash it.