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FCC formally declines attempt to regulate pay media

Though legal analysts say it would violate the U.S. Constitution, some broadcasters—stung by the FCC’s recent “indecency” initiative—have been urging the commission to regulate the content of pay media such as cable television and satellite radio.

In a pre-holiday letter, the FCC formally denied the request of a broadcaster who is unhappy with radio jock Howard Stern’s public threats to “destroy” over-the-air radio by moving his popular show to Sirius satellite radio where he is free to say anything he pleases on the air.

FCC Media Bureau Chief Ken Ferree said in a one-page letter that there is no basis for the FCC to revisit its precedent to exempt subscription-based media services from oversight for indecent content. That precedent, he noted, is supported by existing case law.

Saul Levine, president of Mount Wilson FM Broadcasters of Los Angeles, a commercial radio station owner with three stations, wanted the FCC to launch a rulemaking to subject satellite broadcasters to the same indecency standards as terrestrial broadcasters.

Both radio and television broadcasters who use the public’s spectrum at no cost have complained that the FCC’s indecency provisions make it hard for them to compete with pay services. However, the courts have long ruled that subscription media enjoys protection against content regulation because subscribers pay to access the programming they prefer.

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