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 be far behind?

NEW YORK -- 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 be far behind?

Specifically, could the FCC enforce its indecency rules -- which Stern claims drove him away from terrestrial -- at satellite radio?

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 at 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?

According to Levine's petition, the FCC has already 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 programming 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 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 loaned, 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. But also . . . would it hold up in court is another matter."

John CriglerJohn 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.

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 to, at the behest of Congress, extend indecency enforcement to satellite, 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."

Ron Rodrigues, senior director of public relations for Sirius Satellite Radio, says the company's subscription-based service has "a built-in safeguard against people who would otherwise be accidentally tuning [in] indecent programming."

Rodrigues adds that it is reasonable to assume that people who subscribe know that Sirius offers uncensored programming, since the product is marketed that way.

The safeguard involves a parental blocking feature. On older Sirius radios, subscribers can enroll in the "family pack," which blocks more risqué channels, such as Raw Dog and some hip-hop outlets. On newer Sirius radios, password-enabled subscribers can block individual channels.

Rodrigues notes that listeners need a credit card to subscribe and that the majority of credit card holders are older than 18.

"INCREASING TENSION"

Speaking at the National Assn. of Broadcasters Radio Show in October, FCC Commissioner Kevin Martin said there is "increasing tension" over different decency standards for broadcasters and paid subscription services transmitted through cable and satellite. The Republican commissioner said it is a subject the FCC "will have to face -- whether or not there should be changes made to level the playing field."

Democratic FCC Commissioner Jonathan Adelstein says, "The courts have held that there's a different standard for subscription services, so it's difficult for us to argue that we would have the authority to go after subscription services.

"I know that this might not seem fair from the perspective of over-the-air broadcasters or from the perspective of people that don't necessarily distinguish between the two. But we have to be careful not overstep the bounds of our authority, or we risk having what limited authority we have slapped down by the courts."

A leading authority on the subject, who wrote the recent Viacom reply brief in the indecency forfeiture case over the Janet Jackson incident at the Super Bowl, agrees 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," First Amendment attorney and former FCC counsel Bob Corn-Revere says.

Corn-Revere says federal lawmakers could push for a change in the upcoming 109th Congress. He points to Sen. John B. Breaux, D-La., who introduced an amendment to an indecency bill in March that would make satellite and cable subject to the same FCC fines as broadcast stations. That amendment was defeated in committee 12-11 and never made it into the bill.

The issue, he says, "is very bipartisan. Even at the commission-who has been pushing hard for bigger fines? The Democrats."

WILL CONGRESS ACT?

Crigler says the debate is likely to "languish unless a political impetus gathers around it . . . This is the kind of thing that sometimes people pile on to and, if it gains that kind of impetus, the commission would probably take it more seriously. My hunch is that it will take some push, not just from the broadcast industry or individual licensees, but a push from Congress."

Just because Republicans control Congress and the White House does not mean the government is anxious to venture into this First Amendment minefield.

Artist groups and unions successfully blocked the Broadcast Decency Enforcement Act, S. 2056, from coming to the Senate floor as a "unanimous consent" bill during the Nov. 17 lame-duck session in the House of Representatives. Several members of the House were convinced to keep a "hold" in place on the bill.

"The House and the Senate feel strongly that the FCC should be given more authority in how it exercises its discretion," Crigler says. "It's likely that in the coming year, Congress will give the FCC more authority to fine broadcasters. It's hard to know whether they will also come back to this question [of extending indecency rules to satellite and cable services] that was discussed by the House and Senate subcommittees last summer."

Additional reporting by Bill Holland in Washington, D.C.