Space Radio Rocks First Amendment

I'm a satellite radio investor. I bought Sirius when it was dirt cheap (it isn't worth much more now) because I love satellites and all the things you can do with them. Also because I used to love radio, but the stuff you get on the free airwaves, in my view, and for a multiplicity of reasons, has turned crappy. Satellite radio, a cool new thing, comes at the right time for many disgruntled listeners. Whether the new-fangled satellite radio industry (which consists of two innovating companies, Sirius and its older and bigger competitor, XM) can make it big, or survive at all, remains open. But I figure its worth a shot.

I didn't expect
Howard Stern.

Along with literally millions, I followed with interest as shock jock Stern, notorious for a lot of things, but mostly for being the highest-paid and most fined radio star in history, stepped off the terrestrial radio planet and blasted himself into space (with an introduction yesterday by Star Trek's George Takei). Regardless of whether you're a member of the cult of Stern, or would rather swallow plutonium pellets than listen to even one of his broadcasts, you gotta agree the presence of the self-proclaimed "King of All Media" on the spacewaves can help the satellite radio industry lift-off like nothing else.
Profanity and all.

Why did Stern take a chance and jump the earthly dial? Obviously, for
money. But also, he says, to escape the FCC and its decency policing of his not always decent programming.

But why doesn't the FCC reach out and regulate the content of satellite radio?

indecency rule (47 CFR 73.3999, enforcing 18 U.S.C. 1464) which sanitizes programming aired between 6 a.m. and 10 p.m., applies to broadcast -- radio as well as television -- only. ("Obscene" content, by the way, is always forbidden. And I don't know how Mr. Stern feels about it but apparently his stuff is not obscene, merely indecent.) And Howard's famous terrestrial radio show is aired in the good, clean morning.

But why doesn't the FCC rule apply to programming transmitted via subscription services like satellite radio or pay TV? What is the basis for the distinction?

In his article,
Howard Stern Goes Into Orbit, Taking the First Amendment With Him, Columbia University School of Law's Prof. Michael Dorf looks into it: "Although a number of answers have been suggested in judicial opinions and elsewhere, none of them stands up to close scrutiny. That may mean that in the long run, the FCC will catch up with Stern, even in space." He adds that we "would do better to liberate the airwaves here on Earth than to extend a dubious regime of censorship to the heavens."

It's easy to see where the legal theories upon which content regulation are based -- the scarcity theory and the pervasiveness theory -- rationally "apply with equal force to satellite and conventional radio" as Prof. Dorf argues. Calling those theories "downright idiotic," he concludes,

The First Amendment should not be interpreted to permit the FCC to regulate indecency, whether the allegedly indecent programming enters the home via a cable, antenna, telephone line, or satellite dish. Nor should it matter whether the material is then viewed and/or listened to on a radio, TV, computer, iPod, or any other device.

Whether in space, cyberspace or even on good old Planet Earth, the same simple rule ought to apply: If you find some program offensive, don't tune in (and if you have pre-sets or screening devices, feel free to use them).

Sounds decent to me.


It's not true I had nothing on, I had the radio on.
-- Marilyn Monroe

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