FCC commissioner Kevin Martin told broadcasters today (Oct. 7) at the NAB convention in San Diego that there is "increasing tension" over different decency standards for broadcasters and for paid subs

FCC commissioner Kevin Martin told broadcasters today (Oct. 7) at the NAB convention in San Diego that there is "increasing tension" over different decency standards for broadcasters and paid subscription services transmitted via 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."

The comments came up during an FCC breakfast discussion with Martin and Democratic commissioner Jonathan Adelstein, moderated by Bonneville president Bruce Reese. Neither Martin nor Adelstein would specifically address the news that indecency posterchild Howard Stern is moving from terrestrial to satellite radio.

Martin said there is an important distinction between consumers choosing to receive and paying for a program versus one broadcast for free over the public airwaves.

Adelstein noted that the courts, too, differentiate between free, over the air broadcasting and subscription-based services that involve consumer choice. If Congress ordered the Commission to regulate satellite and cable it would do so, Adelstein said, adding, "I'm not sure the courts would uphold that."

Calling indecency enforcement "one of the least favorite parts of my job," Adelstein said the FCC enforces the congressionally mandate indecency statute "with great care" while upholding the First Amendment.

"I don't think the FCC should go after performers," Adelstein said, referring to proposed legislation in Congress that would do exactly that. "It's the licensee's obligation to keep their airwaves appropriate." He also intimated that the Commission would soon be releasing some decisions that make it clearer what the FCC considers indecent and what it does not. Billboard Radio Monitor has learned that the commission is close to ruling on about 20 pending indecency cases.

Speaking from the floor, a broadcaster warned the commissioners that if indecency enforcement pushed edgy talent over to satellite radio, terrestrial radio would suffer from bland programming.

Martin also weighed in on the Third Circuit Court Of Appeals decision to uphold the FCC's market redefinition rule. Initially apprehensive about converting to an Arbitron-based market definition, Martin said the Commission needs to understand the implications for small, unrated markets before proceeding with a revised definition for them. His watchwords: "proceed carefully."

Greeted with a nearly universal thumbs down from radio, the FCC proposal to require station airchecking also received floor-time, with Martin saying he's sensitive to the burden it would place on stations -- "particularly ones without a history of indecency complaints. Martin says the Commission should differentiate between broadcasters with a pattern of indecency violations and those without.

With a Nov. 1 comment deadline looming for the commission's Notice Of Inquiry on localism, Adelstein urged broadcasters to let the commission hear from them on the subject. Martin said he believes many broadcasters already provide the localism and community service that public interest groups have been clamoring for, but haven't done a good job of getting the word out about their public service efforts.

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