The nation's biggest radio station owner has asked the Federal Communications Commission to force a merged XM/Sirius satellite radio company to obey the agency's indecency laws as a condition for union. "One of the primary potential dangers to free, over-the-air radio posed by this merger is siphoning popular, including 'edgy' content, with consequent loss of advertising revenue," Clear Channel wrote to the FCC on March 11th. "That potential harm is mitigated if broadcast decency rules were to apply to the merged entity. There is no constitutional bar to such a condition."

The media giant filed the request before recent reports that FCC Chair Kevin Martin is preparing the agency to make a decision about whether to allow XM and Sirius to marry. Now that the Department of Justice has approved the merger, the FCC is under more pressure to get the issue resolved. Clear Channel's filing represents a rare instance in which a major broadcaster has asked the Commission to expand, rather than restrict, its authority over so-called indecent fare.

In referring to "edgy" content, Clear Channel probably means the voice of Howard Stern, now broadcasting on channels 100 and 101 of Sirius satellite radio. In 2004 the FCC slapped six Clear Channel stations with almost half a million dollars in fines for airing a program in which Stern and his guests discussed anal and oral sex while sounds that resembled farting aired in the background. The agency also took exception to Stern's praise of an imaginary personal hygiene product identified as "Sphincterine;" flatulence could also be heard during this segment. "Given the detailed discussion of the sounds and smells associated with excretory activity and oral sex, which were accompanied by the sound effects of flatulence and were dwelled upon, it is clear that the material was used to shock and pander," the Commission concluded.

Two months later Clear Channel settled with the FCC for the Stern programs and other radio fare that the agency identified as indecent. The FCC dropped its complaints and Clear Channel agreed to voluntarily pay the government $1.75 million and set up a company-wide plan for preventing indecent broadcasting on its licenses. The broadcaster also removed Howard Stern from its stations. In October 2004, Stern announced that he would leave terrestrial radio entirely and move to Sirius. "It's time to go," Stern told his listeners. "I believe more in satellite than I do in radio." The FCC's indecency rules do not apply to satellite broadcasters, at least not so far.

But Clear Channel's March 11th filing also asks the FCC to connect other requirements to the proposed XM/Sirius merger. Since both satellite broadcasters requested FCC permission to unite early last year, Clear Channel has repeatedly asked the agency to add conditions that would directly benefit it. These have included further relaxing the FCC's limits on how many radio stations an entity can own in big markets, and requiring a united XM/Sirius to integrate HD Radio technology into their satellite receivers. Clear Channel is an HD Radio investor and booster.

Strings attached

Now Clear Channel wants even more strings attached to the possible marriage, some of which have been proposed by various public interest groups such as Public Knowledge. They include:

A new satellite radio competitor



"Whether such competition be achieved through a long-term lease of satellite capacity to a third party having complete freedom to control programming over the leased channels or through some other means," Clear Channel writes, "a viable competitive alternative to XM-Sirius in the SDARS allocated spectrum must be ensured concurrent with any possible license transfer." Ars has already reported on one possible third-party scenario, proposed by Chester C. Davenport of Georgetown Partners. The Clear Channel filing says at least 50 percent of the available satellite spectrum should go to this new entity.

A 5 percent "public interest" set aside



This would be modeled after the FCC's Direct Broadcast Satellite (DBS) service set aside. "There is no intrinsic public interest benefit flowing from the proposed XM-Sirius merger," Clear Channel says. "If the public interest test for grant of the license transfer is to be met, there must be a reservation of satellite capacity dedicated to the public interest." The filing does not attempt to define the term "public interest."

A merged XM/Sirius cannot broadcast local programming or solicit local advertising

XM/Sirius should be defined strictly as a national service. "Local advertising revenue is the lifeblood of the terrestrial broadcasting system," Clear Channel declares. "Siphoning local advertising would pose a direct threat to the ability of terrestrial broadcast radio to fulfill its core missions."

Apparently Clear Channel finds the prospect of a merged XM/Sirius so threatening that the company is willing to advocate decency regulation and traditional public interest reforms—at least for its prospective competitors.