A bow to the nanny state

THE FEDERAL Communications Commission has been an increasingly zealous regulator of radio and TV programming, handing down recordsetting fines while pushing Congress for more control. Its eagerness to censor casts a shadow over not just free radio and TV but also subscription audio and video channels whose programming falls outside the FCC’s authority.

Why? Because companies in virtually every communications medium need the FCC’s approval for some aspect of their business. So they muzzle themselves, or risk having a competitor seize upon a bit of offensive or indecent programming in the hope of turning the FCC against them. Either way, the commissioners’ nanny-state ambitions have a chilling effect on free speech that reaches past the limits of their regulatory power.

The latest example is XM Satellite Radio’s decision to suspend the shock jocks who host the popular “Opie & Anthony Show.” Earlier this month, a supposedly homeless guest on the show said he wanted to rape Laura Bush, Condoleezza Rice and Queen Elizabeth II.

Bear in mind that “Opie & Anthony” is carried on an “explicit language” channel aimed at adult listeners (albeit with a mean-spirited 15-year-old boy’s sense of humor). Subscribers who don’t want to hear the channel don’t have to, and can even instruct XM to prevent their radios from receiving it. Still, a furor ensued, drawing a statement of condemnation from XM and a formulaic apology from the jocks. As the uproar continued, Opie and Anthony complained of being “under the same scrutiny as NPR.” XM responded by suspending the pair for 30 days “to make clear that our on-air talent must take seriously the responsibility that creative freedom requires of them.”


Maybe XM’s management has little patience for insubordination. Many of XM’s subscribers, advertisers and financial analysts, however, thought that the company’s stern message was aimed at the FCC, not its employees. Hemorrhaging money, XM wants to merge with satellite-radio competitor Sirius but needs the commission’s approval. It’s telling that one of the promises XM and Sirius have made to curry favor in Washington is that they will let customers remove channels with explicit content from their subscription -- something that FCC Chairman Kevin J. Martin has urged pay TV services to do.

Unlike local radio broadcasts, XM’s signals are easy to avoid. People who are offended by Opie and Anthony can evade them with 100% accuracy. Subscribers can tell XM when its hosts cross the line, and it can govern itself accordingly. But the commission’s intrusions into programming make it impossible to tell whether the line crossed was XM’s or the FCC’s.