Legal eagle-eye view of satellite indecency

The decision of the FCC not to impose the indecency regulatory regime on satellite audio services was remarkably swift. Swift, too, is the reaction of communications legal veteran John King, owner of law firm Garvey Schubert Barer. He notes not only the speed of the FCC inaction, but the Commission's interesting choice of messengers. For anyone interested in a sneak peek into the internal workings of Washington.

The who, why and when of the Media Bureau's satellite radio decision

John Wells King, Owner, Garvey Schubert Barer

As a veteran FCC practitioner, I look not only for the "what" of a Commission action, but also the "when," the "who," and the "why." These can provide a reality check on the FCC's action on a given matter.

The "when": The Commission ordinarily does one of two things with a petition for rulemaking on a policy-based matter: it will either grant the petition and initiate a proceeding, or it will leave the petition languishing on the shelf, by taking no action. The extraordinarily quick action on the Mt. Wilson FM petition, dismissing it less than seven weeks after it was filed, sends a strong signal that Chairman Powell and at least two other Commissioners have no interest in addressing DAB program content regulation.

The "who": Policy-making matters are usually acted upon by the FCC's five Commissioners, whose decisions take the form of reports, orders, and memoranda. The Mt. Wilson FM petition, however, was dismissed by a letter from Media Bureau Chief Ken Ferree. This suggests that the Chairman and Commissioners may have preferred to disassociate themselves from any action that critics might claim is "soft" on indecency. Designating the Media Bureau Chief as the executioner is interesting in light of the fact that the satellite radio regulations are contained in rules under the province of the International Bureau.

The "why": A fair inference to be drawn from the dismissal is that the Commission is using Ferree to send a signal to Congress: the FCC will stay out of satellite radio content regulation according to its own precedent. Those who want to extend content regulation will have to look to Congress for relief.

The "what next": Mt. Wilson has the option of filing a petition asking the Media Bureau to reconsider its decision or an Application for Review requesting that Chairman Powell and his colleagues overturn the Bureau's decision. If the past is prologue, the chances of reconsideration or reversal are as good as expecting Halley's Comet to reappear tonight.