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Stern Contract Could Resurrect Pay-Radio Indecency Debate

By | October 18, 2004

      Political pressure to apply the same indecency restrictions currently faced by traditional broadcasters to cable and satellite broadcasters is growing, and it may rise further once controversial shock jock Howard Stern moves his show to Sirius Satellite Radio [SIRI] in 2006.

      Stern’s racy content has been a lighting rod for attention from lawmakers who are seeking to crack down on “indecency” aired on traditional broadcast stations. However, subscription TV and radio still appear likely to maintain their immunity from the same standards that now face Free-To-Air television and radio broadcasters.

      A political push for cable and satellite TV censorship is “inevitable,” in the United States, said Adam Thierer, director of telecommunications policy at the Washington, D.C.- based Cato Institute, a public- policy think tank.

      The Senate previously failed by one vote to pass an amendment that called for imposing fines and regulation for “indecency” on cable and satellite networks that now are faced by traditional broadcasters, said Thierer, who expected attempts to pass similar legislation in the future. Capital Hill sources confirmed the likelihood that such proposals would surface again in the next Congress. House Energy and Commerce Committee Chairman Joe Barton (R-Texas) is one of several lawmakers who have hinted at a push for traditional broadcast regulation to be imposed on new, subscriber-based media outlets, Thierer said. Any law that might pass ultimately would go to the courts, and serious constitutional questions would be raised about media censorship.

      If any single event could rally the forces that want to toughen restrictions on subscription broadcasting, it might be Stern’s move to satellite radio, Thierer said in an interview with Satellite News. It could spur a veritable “revolution” in censorship policy and First Amendment law, he added.

      The Federal Communications Commission (FCC) also is taking a closer look at indecency following the much publicized incident during the halftime show of the last Super Bowl in which singer Janet Jackson fleetingly exposed one of her breasts in what later was described by those involved as a “wardrobe malfunction.” Pressure is mounting on the FCC to crack down on such transgressions, said Commissioner Kevin Martin.

      The FCC used to receive indecency complaints by the hundreds but now they arrive in the hundreds of thousands, Martin said earlier this year. Consumers, particularly parents, increasingly are frustrated and sometimes outraged, he explained.

      Martin has offered a four-point plan for combating indecency that stops short of calling for subscription broadcasting to face those heightened restrictions. He does ask for voluntary measures to assuage public concerns. His recommendations are to enforce the existing law aggressively, to encourage satellite and cable TV service providers to offer family-friendly programming packages, to allow local TV broadcast stations to consider community standards and to reject inappropriate network programming, and to urge broadcasters to reinstate the family hour in the early TV viewing.

      According to cable industry figures, nearly 65 percent of US homes subscribe to cable or satellite TV. Martin said he is sympathetic to people who are calling for a “level playing field” between traditional broadcasters and their satellite and cable competitors.

      The plethora of programming available over-the-air, on cable TV and from satellite TV service providers also includes content aimed at children. The advent of the v-chip and software are alternative ways to block objectionable channels.

      Consumer Choice

      Jim Collins, vice president of corporate communications at Sirius, said consumers have the option of whether to subscribe to satellite radio. Those who choose to do so still have the option to block any channel they do not wish to hear.

      “We are regulated like cable TV and satellite TV,” Collins said. “We believe the FCC will continue to regulate us in that manner.”

      Stern personally has spoken about his great interest in shifting to satellite radio where the same standards for indecency imposed on Free-To-Air radio do not apply. His content has led to repeated fines from the FCC for indecency that his employer has paid.

      Chance Patterson, vice president of corporate affairs at XM Satellite Radio [XMSR], said his company does not expect satellite radio’s immunity to indecency rules to change “at all.

      The pay-to-play freedom of satellite radio is similar to the latitude that allows HBO to offer premium content. HBO airs critically acclaimed shows such at “The Sopranos” and “Sex In The City,” Patterson added.

      Despite speculation that the National Association of Broadcasters (NAB) would call for lawmakers to apply the same indecency restrictions on subscription services as imposed on over-the-air broadcasters, the NAB has not specifically endorsed such a change, said NAB spokesman Dennis Wharton. However, Wharton explained that most people likely would acknowledge that over-the-air programming on both radio and TV is far less explicit in terms of sex and violence than programming distributed by cable and satellite.

      “If regulators and Congress are serious about addressing this issue, it does not seem appropriate to deal with broadcast programming in a vacuum,” Wharton said.

      Any effort by the NAB to lobby for the regulation of satellite radio is another indicator of the trade group’s “anti-competitive habits,” Patterson said. “It is an organization that has been attempting to thwart consumers from obtaining satellite radio for the last decade.”

      Adapting To Competition

      NAB President Edward Fritts told attendees at the NAB Radio Show during an Oct. 7 speech that no business on the planet adapts to competition or responds to a changing regulatory climate better than local radio. When the new digital technology of HD Radio is combined with traditional radio’s bedrock of localism, it offers a service that satellites, iPods, and other MP3s cannot match, he explained.

      “Broadcasters still have a heck of a lot of political muscle but they have far less than they used to have,” Thierer said. A “massive exodus” of listeners will hit traditional radio broadcasters in the same manner that pay-TV alternatives have been pulling viewers away from traditional TV broadcasters, he added.

      “The trickle is going to become a flood,” Thierer said. Cable and satellite broadcasters are going to gain additional subscribers, and lawmakers will be tempted to let the courts resolve any constitutional issues about censorship, he concluded.

      (Adam Thierer, Cato Institute, 202/789-5211; Kevin Martin, FCC, 202/ 418-2100; Jim Collins, Sirius Satellite Radio, 212/901-6422; Chance Patterson, XM Satellite Radio, 202/380- 4318; Edward Fritts, National Association of Broadcasters, 202/429-5300)

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