In late 2004, the FCC rejected a petition from Saul Levine, president of Mt. Wilson FM Broadcasters, which asked the commission to amend the Satellite Digital Audio Radio Service rules to include an “indecency” provision.
FCC Media Bureau Chief Kenneth Ferree wrote in response to Levine that the commission had ruled “subscription-based services do not call into play the issue of indecency,” and that “the commission does not impose regulations regarding indecency on services lacking the indiscriminate access to children that characterizes broadcasting.”
Radio World Associate Editor Kelly Brooks spoke with Levine.
RW: You requested that indecency regulations apply to subscription satellite.
Levine: Satellite radio should be treated the same way as terrestrial radio. That was the thrust of it. Not that there should be censorship or there shouldn’t be, but the same rules should apply to both.
Remember, for terrestrial radio, you have this so-called “safe harbor” where from 10 at night on, you can have some pretty far-out language. But they’re treating satellite radio differently in that they can do it 24 hours a day. It’s the inequity that we are opposing. …
We (petitioned the FCC) in an effort to keep satellite radio from having a hypocritical advantage. It was to protect the traditional radio industry from this hypocrisy, to give terrestrial radio a level playing field. I’ve gotten a few e-mails from people who don’t understand this, saying, “Oh you’re terrible. You’re trying to censor what we get!” And that’s not it.
RW: What’s your feeling now?
Levine: I’m disappointed that the commission did not address the real facts of our petition, which is that they do have the jurisdiction to control satellite radio because they already do in two respects: political advertising has to conform to regular radio rules; and EEO practices have to conform to regular radio rules.
They said in 1997, “We reserve the right to come back and put additional regulation on satellite radio.” Yet they just walked away from all that and said, “No, we don’t really have the right to do it, and besides children are protected because they’re not going to hear pay radio.” …
This is not the end of the petition. It’s being considered by Congress. When Congress adjourned last fall, they were still taking up the possibility of a bill.
There are some people in Congress who disagree with the commission’s interpretation. They do not believe that indecent programming should be available on satellite radio, which is an interesting distinction, because we’re not pushing for censorship. We don’t actually want to stop any kind of programming on satellite radio. We just want an even, level field.
Levine: Satellite radio should not be allowed to do what terrestrial radio cannot do, because they’re really very similar.
A satellite stream is not a Playboy Channel on closed-circuit cable television. There are now 8 million radios out there, there are no devices on them to block this programming – it’s just out there. There are no restrictions. A 16-year-old can go into Best Buy and pick up a receiver and subscribe to it. There are no forms to sign that say, “I’m an adult.” There’s just no control over it.
RW: Why impose indecency standards when customers are paying for the service?
Levine: That avoids the real issue. According to the commission, (unregulated satellite radio) is okay because adolescents can’t hear it, and that’s incorrect.
The distinction is we are talking about the radio waves. The commission is saying they are public, they are a public domain and that private cable television is not – it comes in over a wire, and it’s something within the control of people.
If people want to go out and buy videotapes of pornography and show it to their little kids, well, that’s their own private issue, I guess, so far. That may violate some laws, but as far as the commission is concerned, they’re not involved in that.
So this is the distinction we are making. There is hypocrisy. There is discrimination. The commission is saying the radio waves belong to the public, therefore they can regulate it. We’re saying the radio waves that satellite radio uses also belong to the public.
Now, I suppose you might have a more-narrow test if satellite radio had devices to block indecent programs so adults can control it, or if satellite radio made the buyer show identification when getting the service to show they are not a minor. But they’re not doing these things. So the whole thing is a farce.
The commission says adolescents are not exposed to it, therefore it’s okay. We know as a reality they are exposed to it. The FCC is penalizing terrestrial radio and making us appear at a disadvantage. You know, parents can just as well control what a 5-year-old hears on regular free radio if they want to.
Something else that is very interesting is that with digital free radio, we will have the ability to have a subscription channel. So, potentially, with the commission ruling, they will not be able to say that terrestrial radio cannot present obscenity and indecency on a subscription pay channel as part of the broadcast.
RW: Is there a silver lining here?
Levine: We did to get this response from the commission will be a benefit to companies such as Infinity and others who are going to court to fight the FCC’s imposing of sanctions and penalties on them for these so-called bad words, because what this decision really amounts to is discrimination.
What the FCC is saying is that it’s discriminating between the two services for no really good reason, except one you pay for and one you don’t. I think ultimately the courts are going to strike down the commission on this.
This decision will help regular radio broadcasters fight indecency fines from the commission, because they are really unfair and inequitable. … We also succeeded because we sent copies of this to a number of important members of Congress, and they are aware of this now, so this could potentially still end up in legislation.