Stern’s Critics May Not Be Done

In announcing his defection to satellite radio, shock jock Howard Stern thumbed his nose at regulators, boasting that his raunchy show would then be free of government meddlers and fines.

Some experts say Stern shouldn’t be so sure the long arm of the law won’t try to muzzle him -- even in outer space.

“If the neoconservatives in government really want him, I think Howard Stern would have to move to Mars” to continue his shtick, said Deborah A. Lathen, former head of the cable services bureau at the Federal Communications Commission.

Starting in January 2006, Stern is set to program three new channels for Sirius Satellite Radio Inc. The New York-based company operates a nationwide service that airs more than 120 channels of music, sports and news. It even has a Playboy station dispensing sex advice. Sirius’ 600,000 subscribers pay $12.95 a month and must buy special radio receivers for their homes or cars.

Stern’s shift to satellite radio has provided a new arena -- and new fuel -- for activists in and out of government who have argued that subscription services, namely cable and satellite television, need tighter regulation because of increasingly racy programming.

Currently, pay TV and satellite radio are exempt from the indecency regulations that govern the content of free broadcast stations. Federal Communications Commission Chairman Michael K. Powell and some members of Congress have been calling for an expansion of the agency’s power to hold pay and free TV accountable to the same standards.

For that to happen, industry lawyers say, Congress would have to pass legislation expanding the FCC’s authority, an effort likely to face court challenges from cable TV operators, newspaper publishers and others that might feel threatened by stronger government regulation.

“We would challenge any effort like that, and I think the courts would strike it down,” said Andrew Jay Schwartzman, president of the Media Access Project, a watchdog group in Washington.

Robert P. Corn-Revere, a noted 1st Amendment lawyer in Washington, says broadcasting is treated differently because it can be readily accessed by children and other protected groups. “I don’t think it’s likely the courts would uphold” indecency legislation or regulation targeting subscription services, he said.

Sirius Radio spokesman Ron Rodrigues declined to comment on suggestions that subscription services should face tighter regulation. But, he said, Sirius does allow customers to block individual programs or entire channels that carry adult content or objectionable language.

“We don’t surprise anybody with content they don’t want,” Rodrigues said.

Sirius’ much bigger competitor, XM Satellite Radio Holdings Inc., says it also has tried to be responsive to programming concerns in serving its 2.5 million subscribers.

“We presented our approach to manage adult content to the FCC early on, and the feedback has always been ... we are doing the right thing to make it easy for parents to regulate the programming that is available on XM Radio,” said Chancellor Patterson, a vice president at the Washington-based company.

For now, the FCC can exert leverage over pay TV or satellite radio services chiefly when a license is at stake, either through renewal or transfer. A license can be revoked, for example, if the owner has engaged in criminal activity. The government also can attempt to revoke the license of any owner that has aired obscene material.

The legal standard for proving obscenity is much tougher to meet than that for indecency. The government would have to show that a program was utterly without artistic merit and depicted sexual conduct in a patently offensive way.

By contrast, indecency is considered speech protected under the 1st Amendment. The FCC defines indecent material as anything that “depicts or describes ... sexual or excretory organs or activities” in patently offensive ways.

Still, executives of subscription radio and TV companies that have long exploited their immunity from government indecency restrictions are finding themselves under increasing pressure.

“Congress has already gone after indecency on the Internet, even though the courts have struck them down several times,” said Adam D. Thierer, director of telecommunications studies at the Cato Institute in Washington. “You can bet your bottom dollar, if they can find a rationale to regulate the Internet, they will try to regulate paid subscription services.”