Hours after The Word Network sued Sirius Satellite Radio (9/27 RBR #189), The Word Network also filed a letter with the FCC requesting a formal investigation into Sirius' racial policies.

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The Honorable Kevin J. Martin
Federal Communications Commission

Dear Mr. Chairman:

The purpose of this letter is to request that the Commission make an inquiry to determine whether the decision of Sirius Satellite Radio, Inc. ("Sirius") to remove The Word Network ("TWN") from its programming offerings reflects improper racially discriminatory motives.

This unusual request reflects unusual circumstances. TWN is a non-profit corporation that provides religious radio programming specifically targeted to the African American community in the United States and around the world. TWN's programming features urban ministries, gospel music, live church conventions, and other informational programming that is designed to appeal to a broad range of African Americans, from teens to young adults to older generations. In all of the programming, the emphasis is on social issues and family values that strike at the core of religious and political freedoms. For example, TWN sponsors a program, "Rainbow Push with Jesse Jackson," in which the Reverend Jackson discusses issues related to social, racial and economic justice.

On or about September 4, 2002, TWN executed a Radio License Agreement (the "Agreement") with Sirius that would enable TWN to be carried on Sirius's satellite. In exchange for that access, TWN agreed to pay (and did pay) Sirius a one-time equipment fee of $25,000, along with an annual marketing fee of $40,000. Among its responsibilities, Sirius agreed to promote TWN on other channels on its satellite.

The Agreement provided for an initial term of one year, which would be renewed automatically thereafter unless either party notified the other in writing of its intention not to renew the Agreement at least ninety (90) days before the expiration of the initial term or any renewal term. Neither party provided any notice to the other in 2003 or 2004, and Sirius continued to carry TWN for a third term beginning on September 3, 2004.

Carriage on Sirius is critical to TWN, which is now available to approximately 37 million homes in the United States. TWN is also available in 140 countries around the world via satellite TV. In addition, the network is carried on The Armed Forces Network, which makes TWN's programming available to approximately one million men and women in the armed forces stationed in 165 countries throughout the world. Despite the importance of its carriage on Sirius's satellite, TWN was advised by Sirius, by letter dated June 6, 2005, that TWN's carriage on the Sirius satellite would be terminated as of September 3, 2005. No explanation was offered in the letter of termination. Upon telephonic inquiry, TWN was advised (1) that TWN was being dropped from the Sirius satellite because of "poor ratings" and (2) that TWN could regain its place on the Sirius satellite if TWN paid Sirius "millions" of dollars.

The circumstances surrounding the termination of TWN's Agreement with Sirius are suspect. To begin with, TWN was not even aware of Sirius's maintenance of any "ratings" for TWN's programming (and the Agreement certainly makes no mention of ratings). When repeatedly asked to provide specifics on TWN's allegedly "poor ratings," Sirius refused to provide any information. Sirius's refusal (or inability) to provide that ratings information becomes even more suspect in light of Sirius's indication to TWN that Sirius has not terminated and has no plans to terminate similarly-situated non-minority religious programs on its satellite. When pressed on that different treatment, Sirius again refused to provide any information to demonstrate any meaningful ratings difference between the minority and non-minority religious programming.

Sirius's refusal (or inability) to provide that ratings information inevitably raises a question whether the reference to TWN's allegedly poor ratings is nothing more than a pretext to remove TWN on a basis that would be free of racial bias. That question looms particularly large in light of the demand for a multi-million dollar payment to offset those allegedly poor ratings. That demand is plainly prohibitive and, to TWN's knowledge, is not being made on any other programmer (religious or otherwise) whose product is currently carried on Sirius.

The foregoing facts become even more suspect when it is remembered that TWN presents the only African American religious programming on Sirius. TWN's concerns about possible racially discriminatory motives were reinforced when TWN subsequently learned that two other networks - both featuring Hispanic programming - are also being removed from the Sirius satellite.

To be sure, the programming obligations of a satellite licensee like Sirius are minimal, and the Commission generally refrains from involving itself in matters related to a licensee's programming decisions. Nonetheless, Sirius's license does require it to serve the "public interest, convenience, and necessity," Satellite CD Radio, Inc., 12 FCC Rcd 7971, 7994, (1997) (citing Section 309 of the Communications Act of 1934, as amended), and for that reason, the Commission did decide that satellite licensees would be subject to EEO requirements as well as political broadcasting obligations under Sections 312(a)(7) and 315 of the Communications Act of 1934, as amended. Establishment of Rules and Policies for the Digital Audio Radio Satellite Service, 12 FCC Rcd 5754, 5791-92 (1997).

The bedrock programming responsibilities of a satellite radio licensee presumably include a prohibition against racial discrimination. Although the Commission's rules do not explicitly reference that prohibition, the Commission has made clear that a Title III licensee cannot have racially discriminatory programming policies and that there are circumstances where "[a] policy of discrimination may be inferred from [a licensee's] conduct and practices . . ." Alabama Educational Television Commission, 50 FCC2d 461, 465 (1975) (citation and subsequent history omitted). Although Sirius may carry other music programming which features African American artists (and which could appeal to a broad segment of the population beyond the African American community), there is, to TWN's knowledge, no other African American religious programming being carried on the Sirius satellite.

In view of the foregoing, the Commission should (1) initiate an inquiry to determine whether Sirius's termination of its agreement with TWN reflects the kind of racially discriminatory motives prohibited by the public interest standard which underlies Sirius's license, and (2) if it determines that such motives do underlie Sirius's actions, the Commission should (a) reverse the termination of Sirius's carriage of the TWN programming and (2) initiate proceedings to revoke Sirius's license.

Sincerely,

Dickstein Shapiro Morin & Oshinsky LLP
Attorneys for Word Religious Belief, Inc. d/b/a The Word Network