Why Cable Needs to Keep Eye on Stern

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Washington — When Howard Stern agreed last month to jump to satellite radio in 2006, the heavily fined shock jock said he was doing so mainly to escape the grasp of federal indecency laws.

But at least one traditional radio company isn’t ready to give Stern his full First Amendment freedom.

Angered by Stern’s taunts that he is also moving to satellite to bury the old radio business, Mt. Wilson FM Broadcasters Inc. filed a petition that asked the Federal Communications Commission to impose indecency requirements on satellite radio.

“I’ve had radio for 45 years and I don’t like somebody coming along that I’ve done nothing to and say I’m going to put you out of business. That got my dander up,” Mt. Wilson president Saul Levine said.

CLEAN RECORD

Levine’s company owns two radio stations in Los Angeles and a third near San Francisco. The FCC has never fined the company for an indecency infraction.

“We run classical music. You can’t be any more pure than that,” Levine said.

The FCC has not solicited public comment on the request, but the top lawyer for Clear Channel Communications Inc., the largest radio-station owner in the country, has been widely quoted saying the company favored applying indecency rules to satellite radio.

Support from a big industry player like Clear Channel could drive momentum behind Mt. Wilson’s effort. Clear Channel is an investor in XM Satellite Radio, the larger satellite competitor to Sirius Satellite Radio, Stern’s new outlet.

Sirius last month signed the so-called King of All Media to a five-year deal reportedly worth $500 million. That deal begins in 2006.

Clear Channel also dropped Stern last April over indecency issues and two months later paid a $1.75 million fine to settle Stern-related FCC complaints.

A successful effort to apply indecency rules to satellite radio would certainly be groundbreaking, and there is no telling whether the FCC or Congress would stop there or try to rein in other media industries not covered by the agency.

Under current law, the FCC can ban indecent programming on radio and TV from 6 a.m. to 10 p.m.

The agency, acting on complaints, is allowed to fine TV and radio stations up to $32,500 for each violation. Janet Jackson’s Super Bowl breast exposure on CBS, for example, could cost Viacom Inc. $550,000 if its appeal fails.

Many ABC affiliates refused to air Saving Private Ryan in primetime on Veterans Day, fearing fines and license challenges because the Oscar-winning war film is laced with the F-word.

WHY THE RULES

The purpose of the rules is to shield children from racy programming at times when they are expected to comprise a large segment of the viewing audience.

The FCC defines as indecent material that describes or depicts sexual or excretory organs or activities in a patently offensive manner, as measured by contemporary community standards. Critics say that definition is vague, and that FCC enforcement is selective, based on prevailing political concerns.

Pay services are not covered by the indecency rules. Cable, satellite TV and satellite radio — though they all also use publicly owned airwaves licensed by the FCC — are held to a different standard.

The Supreme Court has established that at least in the context of cable television, an outright ban on speech for two-thirds of the day violates the First Amendment, when pay-TV subscribers have access to blocking technology that allows them to filter out programming they don’t want to see.

“We have a lot of laws on the books that says that if you are going to impose a content regulation, it has to be narrowly tailored means,” said Kathleen Kirby, a First Amendment lawyer at Wiley, Rein & Fielding in Washington.

But that doesn’t mean Capitol Hill lawmakers and FCC regulators won’t make a run at slapping content controls on pay services, if the TV industry continues to provoke public outrage.

TV UNDER FIRE, TOO

Just last week, ABC had to apologize for introducing Monday Night Football with a racy spoof on its primetime hit Desperate Housewives. The segment involved sexy star Nicollette Sheridan, who dropped her towel in the Philadelphia Eagles locker room and jumped naked into the arms of wide receiver Terrell Owens.

FCC member Michael Copps, a Democrat, has called for greater indecency oversight of cable. In addition to the crackdown on broadcast indecency, the FCC is studying whether it may regulate violent programming on broadcasting, cable and satellite TV.

Rep. Joe Barton (R-Texas), chairman of the House Energy and Commerce Committee, has boldly predicted that cable would soon fall under the broadcast indecency laws. As cable is a presence in about 70 million homes, the industry is just as pervasive as broadcasting, and consumers do not discern a difference between the two media, Barton said.

Brent Bozell, president of the Parents Television Council, a group that has filed numerous indecency complaints at the FCC, has yet to enter the debate fueled by Mt. Wilson’s petition.

“Since current indecency rules don’t apply to satellite radio, we won’t have a comment at this time,” PTC spokeswoman Kelly Walmsley said.

First Amendment attorney John Crigler said Mt. Wilson’s petition argued that the FCC could use current statutory authority to include satellite radio within the indecency regime. That approach, he said, is flawed.

“It doesn’t deal with what I think is the harder issue, which is whether or not the [FCC] could [act] consistent with the constitution,” said Crigler, of Garvey Schubert Barer in Washington. “There is no constitutional, First Amendment argument in that petition at all.”

LAW CHANGE NEEDED

Crigler added that he suspects the FCC would not endorse Mt. Wilson’s petition or consider applying indecency regulations to cable or satellite TV without new legislation broadening the scope of the indecency rules.

“I think it would want some pretty clear direction from Congress, because if it goes down that path and tries to extend indecency to satellite or cable, it’s going to have a heck of a judicial fight on its hands,” he said.

The National Association of Broadcasters has not taken a position on the Mt. Wilson petition.

“Most people think that programming on broadcast TV is far tamer than what you find on cable and satellite,” NAB spokesman Dennis Wharton said.

The NAB is in an odd position. Does it support Mt. Wilson, taking Clear Channel’s lead? Or does it use the petition to make the point that indecency rules — hampered by vagueness and selective enforcement — should be eliminated entirely?

“NAB has said to Congress that it is unfair to impose these regulations just on broadcasting and they ought to be extended to cable and satellite. From a First Amendment lawyer’s perspective, that’s the wrong way to go,” Crigler said.

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