Changing Channels

The XM-Sirius merger is approved. Now let's see if they survive

After a mere 17 months of bureaucratic dawdling and foot-shuffling, the FCC Friday night finally approved the merger of satellite radio companies XM and Sirius. Attached was the typical bundle of government-imposed  "consumer interest" requirements, mostly drawn from some alternate Washington universe where the laws of economics do not apply and listeners have an unquenchable thirst for tedium.

The most absurd was requiring the two companies to set aside 8 percent of their channels for "non-commercial programming." I'm not sure what that even means in the context of satellite radio, where only a handful of the channels -- all of them pickups of conventional terrestrial RM stations -- carry advertising. Sirius already has three channels of NPR programming; XM's Public Radio Channel runs popular shows other public broadcasters, including Prairie Home Companion, This American Life, and even an original program hosted by NPR castoff Bob Edwards. XM also has a channel for CSPAN Radio, and both companies have the BBC. Add in dozens of channels featuring local traffic and weather reports, classical music, and other niche programming that's increasing difficult to support on commercial radio, and it's hard to see what conceivable public-service market is not already being served on satellite radio.

Almost as dumb as the programming demands were the economic measures imposed by the FCC. Freezing satellite-radio prices for three years may get the commission lots of style points with consumer activists, but price increases in this economy were unlikely anyway, especially when new car sales -- the main gateway into satellite radio for new customers -- are plummeting.

Equally trivial from a consumer standpoint is the FCC's demand for a la carte channel selection -- that is, allowing customers to pay for only the channels they want to receive, rather than requiring them to take the whole lineup. A la carte is a big deal in cable television, where monthly bills can easily top $100, but it's simply not an issue in satellite radio, where lopping off half the XM lineup would probably save a costumer only a dollar or two a month. (The political component of the demand for a la carte in cable television -- the rage that some parents feel over being forced to subsidize smutty networks like MTV that they don't even want their kids to watch in the first place -- is completely absent from satellite radio. The channels that carry shock-jocks like Howard Stern aren't part of the regular lineup and have to be purchased separately.)

Far from being able to impose its economic whims on powerless listeners, the new XM/Sirius is going to have to scramble to find ways to hold onto them.  Satellite technology, which just a few years ago looked like the future of radio, now seems stodgy and even quaint. Listeners can now stream broadband radio signals through a host of devices, from cell phones to iPods. Last month AOL struck a deal to stream the signals of 150 CBS stations through its new radio player. Most industry analysts think broadband is now the wave of the radio future.

Of course, analysts have been wrong before. The history of broadcasting is littered with technologies like AM stereo that failed to fulfill their supposedly spectacular promise. Sounding the demise of satellite radio (much less conventional AM and FM broadcasting, another target of the doomsayers) is way premature. But the cross-breeding of radio, television and telecommunications is spawning new life forms every day. Satellite radio is far from the mightiest. It's too bad it took the FCC 17 months to figure that out.

Court ruling: Janet Jackson's boob 1, FCC 0, but the game's not over

The Nipple That Will Not Die twitched again Monday when a federal appellate court threw out the FCC's fine against CBS-owned television stations for Janet Jackson's Super Bowl boobery. A three-judge panel of the 3rd U.S. Circuit Court of Appeals said the FCC "acted arbitrarily and capriciously'' in fining the network $550,000 -- $27,500 for each of its 20 stations that aired Jackson's halftime show.

But the decision -- even if the FCC decides not to appeal it further -- probably means little for anybody beyond CBS stockholders. The court didn't rule that nipples are okay on television or that the FCC was engaging in censorship. Rather, it said the agency hadn't given broadcasters fair notice that it was cracking down on televised nudity. "The Commission's determination that CBS's broadcast of a nine-sixteenths of one second glimpse of a bare female breast was actionably indecent evidenced the agency's departure from its prior policy," the court ruled. "Its orders constituted the announcement of a policy change -- that fleeting images would no longer be excluded from the scope of actionable indecency."

But the court left no doubt that the FCC is free to continue with the more conservative approach it's taken in the past three years in enforcing rules against so-called indecent programming. "Like any agency, the FCC may change its policies without judicial second-guessing," the court said. "But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure."

The ruling, if it stands, will probably mean that the FCC will have to rescind fines in a few cases from 2003 and 2004, notably including $91,000 against 13 affiliates that aired an episode of Married In America featuring strippers covered in whipped cream. (That one's in court, too.) But the gee-officer-I-didn't-know-it-was-against-the-law defense isn't going to work for later cases, and Hollywood will continue to flaunt what it contemptuously regards as flyover-America morality at its peril. That $27,500 fine for each CBS station that aired Jackson's flashdance? That represented the maximum fine under the law at the time. Since then, Congress has upped the limit to $325,000, which means another Nipplegate would cost CBS $6.1 million.

The vote on increasing the fines, by the way, was 379 to 35. Whether network executives want to admit or not, there's a broad bipartisan consensus that broadcast TV needs to be reined in. Even a Barack Obama victory in November isn't likely to change that.

Why the FCC is going to approve the sale of WTVJ

It's unusual and gives activists who worry about corporate concentration of media the willies, but a plan to join two of South Florida's biggest television network affiliates under one roof is legal and will probably win FCC approval, broadcast-law experts said Friday.

The Washington Post Co., which already owns WPLG-ABC 10, announced Friday that it's buying WTVJ-NBC 6 from NBC. The deal requires approval from the Federal Communications Commission, which Post Co. officials said they hoped to obtain by the end of the year.

And they probably will get it, say attorneys specializing in broadcast regulatory law, including several who work for anti-corporate activist groups. ''On its face, there's no obstacle to this one,'' said Andrew Jay Schwartzman, head of the Media Access Project in Washington. Read the rest of my story in Saturday's Miami Herald.

'The airwaves could be filled with naked buttocks'

Here's a pretty amusing slide show narrated by John Eggerton, Broadcasting & Cable's Washington bureau chief, on arguments submitted by ABC affiliates to the FCC in the NYPD Blue indecency case. The FCC hit ABC stations with a $1.43 million fine for 2.3 seconds of Charlotte Ross' bare backside, suggesting it was the prelude to a horde of predatory butts descending upon American television. ABC is firing back with arguments that include an iconic bit of South Florida artwork.

George Carlin's gone, but the Seven Dirty Words are with us in profusion

Comedian George Carlin always cheerily referred to himself as ''a footnote in American legal history,'' and in the wake of his death from a heart attack Sunday night, he turned into the most frequently cited footnote since that infamous one in the Starr Report about Bill, Monica and cigars.

And about as difficult to write about in a family-friendly forum. For all the changes in the world since 1978, when the U.S. Supreme Court sided with the FCC in fining a radio for broadcasting Carlin's poetically pottymouthed Seven Dirty Words routine, several of those words still make editors blanch and readers fire off smoking letters. Rarely can a single one of the seven be printed in The Miami Herald undisguised by asterisks or dashes.

That illustrates the paradoxical, lurching course of American culture over the past 30 years. What Carlin called ''the seven words you can never say on television'' -- they all refer to sexual practices, body parts or things you do in the bathroom -- are spoken in daily profusion on cable TV. Read the rest of my Miami Herald column.

Guess what? Cable service is crummy

It's not exactly shocking news, but satellite-TV customers are happier with their service than cable customers. The annual American Customer Satisfaction Index, produced by pollsters from the University of Michigan, DirecTV scored 68 points out of a possible 100 from customers, while Dish was close behind at 65 -- the two-top-rated companies in the survey. Cable as a whole scored 64, but that rating benefits from the performance of smaller companies like Cablevision. Most of the larger cable companies got lower scores: Time Warner 59, Comcast and Charter 54. So much for the "consumer protection" that comes from government regulation of cable. Consumers get the best service when companies compete, not when they sit back in comfortable government-created monopolies.

The FCC bares its fangs

In an ominous and frankly power-mad move, the FCC has proposed fining Comcast for airing a video press release on a sleeping potion without letting viewers know it was financed by the manufacturer. The FCC says CN8, one of Comcast's cable networks, aired a video press release for a product called Nelson's Rescue Sleep on Sept. 21, 2006.

Without defending video press releases or the lazy TV station that air them, I'm puzzled by all the concern: A lot of newspaper print press releases with little or no editing and without identifying them as such. If the federal government needs to stamp out the practice on TV, why not in newspapers?

That's just an asterisk, though, to a much broader problem. Letting the feds make rules about newscasts or their content will be absolutely disastrous for television journalism. The lefty media watchdogs who are pursuing this thing -- it was the Center for Media and Democracy that filed the complaint against Comcast -- are blithering fools if they think it won't rebound against them. If the FCC gets the authority to decide what is valid news and what is not, if it gets the right to rule on every story that appears on a newscast, do you think it will stop at video press releases? What do you think a Republican-dominated FCC would have done to CBS over the Rathergate stories on President Bush's military service?

Worse yet, the FCC is attempting this power grab not against the broadcast networks but cable, a medium it has no authority to regulate. All that hoary twaddle about "public airwaves" doesn't apply to a medium that doesn't use the airwaves. Cable TV has triggered a golden age of television precisely because it is not regulated by the government. The Sopranos and Sex and the City and Dexter and The Shield would never have made it to the air in an FCC-regulated environment. And try to imagine either Keith Olbermann or Bill O'Reilly surviving the Fairness Doctrine. Congress or the courts or both need to slam the door on the FCC's expansionist ambitions, fast.

Coming soon from your friends in Congress: Must-not-see TV

To see the damage done by the absurd fiction that America's broadcast airwaves belong to "the people" -- a cute rhetorical device that in practice translates to grandstanding politicians and Big Brother regulators -- just take a look at Tuesday's hearing on violence in the media before the Senate Commerce Committee.

The senators said repeatedly that researchers have "proven" violence harms children, though they wisely avoided any discussion of the social-science quackery that passes for research on this subject. But, granting their premise for a moment, did they talk about the Internet, undoubtedly the single most pervasive and unmonitored medium reaching American kids? Nope. I could post the video of poor Danny Pearl's head being sawed off on this blog and wouldn't hear a peep from any of the distinguished senators.

Movies or gangsta rap? Nope. Too much political money in that part of Hollywood -- that's why Tipper Gore promptly shut her mouth on the subject when her husband developed presidential ambitions. Video games, in which kids not only see acts of violence but are rewarded for carrying them out? Frank Lautenberg made a couple of token stabs in that direction but was roundly ignored by everybody else.

No, the hearing concentrated almost entirely on TV. "Cowardly, terrible, appalling, repulsive were just some of the terms used by legislators to describe TV programmers," Broadcasting & Cable wrote in its account of the session. Because the airwaves are owned by "the people," the senators feel free to endlessly bluster and threaten TV executives, secure that that nobody will bring up that annoying First Amendment business.

Just how absurdly carried away they get was clear from Tuesday's hearing. One of the focal points was a scene from a coupe of seasons ago on FX's The Shield in which a police captain is taken hostage by members of a street gang, then forced to have oral sex with one of them. Even Harvard law professor Laurence Tribe, who was supposedly there to defend the TV executives, railed against the scene, claiming it was probably met the definition of legal obscenity.

In what universe, Professor Tribe? The sex was shot without nudity or on-camera exposure of genitalia. More to the point, the sex was forced -- that is, it was rape. I've seen literally hundreds of rapes in movies that were both more violent and more sexually explicit. Perhaps the most graphic was the vicious pool-table assault on Jodie Foster in 1988's The Accused, which was almost universally praised for supposedly showing the humiliation and degradation felt by rape victims, for bringing the real impact of the crime home to the men in the audience.

Well, The Shield did the same thing -- the rape itself lasted only a few moments, but the impact on the police captain continued throughout the season, damaging his performance at work, wrecking his family life, leaving him sexually impotent and fueling a thirst for revenge so overwhelming that he eventually struck a deal with other criminals to murder the rapist. If you ask me which made brought home to me the psychological damage suffered by rape victims, The Accused or The Shield, I'd say it was wasn't even a close call: The Shield. But instead of being praised for its candor, as The Accused was, The Shield is being offered as pretext for establishing government censorship of television. That's what happens when "the people" own something.

Of course, the irony -- perhaps crime would be a better word -- is that The Shield isn't even on the airwaves. FX is a cable channel, not a broadcast network, and lies outside the FCC's authority. That's a technicality that the senators would like to change. Would-be decency czar Jay Rockefeller promised to introduce legislation putting TV under the thumb of government censors. He's tried before without success, but Congress' lust to win cheap votes -- and punish political enemies along the way -- is growing. Earlier this week, California's senator Dianne Feinstein said she favors reimposing the old Fairness Doctrine on broadcasters, for the explicit purpose of putting talk radio (too conservative for her delicate San Francisco tastes) out of business.

The wisest thing TV people could do right now would be to endorse the proposals floating around for so-called a la carte pricing for cable service. A la carte pricing would enable cable customers to order (and pay for) only the channels they want. Anybody offended by The Shield could simply not order FX and leave the rest of us alone. The Parents Television Council, the clean-up-TV group that produced the video collection of violent scenes (Including the one from The Shield) that got the senators so worked up Tuesday has said many times it would back off of calls for government regulation of cable content if a la carte pricing were to become law. The TV industry should take them up on it.

The FCC's TV violence report: village idiocy

The FCC's long-awaited report on TV violence is finally out, and it's even worse than anybody expected. Not only did the report say the government can and should regulate violence on television, but in interviews explaining, the commissioners were quite clear that they aim to appoint themselves censors of cable TV as well as broadcast. "We can't just deal with the three or four broadcast channels -- we have to be looking at what's on cable as well,'' FCC Chairman Kevin Martin told the Associated Press.

If that ever somes to pass, TV will be reduced to mush. The FCC report suggests that a crackdown on violence will extend into practically every show on television. “A broad range of television programming aired today contains [violent] content," it observes, "including, for example, cartoons, dramatic series, professional sports such as boxing, news coverage, and nature programs.”

So don't misundertand: We're not talking about The Sopranos and CSI here, we're talking about Iraq war coverage on the CBS Evening News and CNN's Virgina Tech coverage, not to mention the lions and tigers on Animal Planet, fistfights at hockey games, and the Nazis in Schindler's List. Anything that some quack psychologist thinks might give a 4-year-old nightmares (or, as the FCC put it, “a definition based on the scientific literature" that "recognizes the factors most important to determining the likely impact of violence on the child audience”) will be fair game. We'll be going right back to the lowest-common-denominator standard of the old three-channel universe.

This is the lunatic endpoint of the whole "it takes a village" school of collective child-rearing. The FCC is saying it doesn't believe parents can be trusted to make decisions about what their kids should watch on TV, so the Nanny State will take over -- and its standards will be inflicted on all of us, children or not.

This report couldn't come at a worse moment. The idiot shrieks of First Amendment Chicken Littles, who predict the end of free speech over everything from Bill Maher leaving ABC to the Bush White House kicking Helen Thomas out of the front row at press conferences, have large desensitized the public to the issue now that there's a genuine threat. And with an election coming up next year, what American politician wants to be the pro-TV-violence candidate?

The last, best hope to divert the kiddie-knows-best steamroller is for cable and satellite TV operators to warm up to the idea of a la carte programming. A la carte service means that subscribers could pick (and pay for) only the channels they want, instead of being forced to accept vast tiers of channels that bore and/or repulse them. There's no technological reason this can't be done. When I was a foreign correspondent living in Nicaragua in the 1990s and watching TV on one of those giant C-band satellite dishes, my satellite company allowed me to choose the channels I wanted from a menu of a couple of hundred.

The cable industry has bitterly opposed a law mandating a la carte service because it's a greedy government-protected monopoly that's used to getting its own way. Why should it let you pay less money for fewer channels when for all these years it's been able to set prices as high as it wanted without fear of regulation or competition? The television industry has sided with the cable guys, because a la carte would destroy its ability to bundle unwanted channels with their popular ones and force cable companies to buy both. Time to wise up, guys. Nobody's going to be buying anything if we have 500 channels full of The Bobbsey Twins Visit Blueberry Island.

I once asked Brent Bozell, the head of the Parents Television Council and the head of the clean-up-TV posse, what it would take to satisfy him. "What would it take to make Brent Bozell shut up?" he paraphrased, fairly accurately. "If we had a system where I can cable television in my home without bringing MTV along with it. A system where every channel in my home is one I invited. A system like a la carte." If the cable industry will put up, Bozell will shut up.

Imus, one more time

Here's the story Barry Jackson and I wrote for this morning's Miami Herald on the end of Don Imus' career. Because we ran out of space, it doesn't contain much discussion of Imus' future. Some of the people I talked to yesterday think he'll be back, perhaps on satellite radio. "Sirius radio is an obvious alternative, because Mel Karmazin is the CEO there and he and Imus have a long professional relationship," said Tom Taylor, the editor of Inside Radio, noting that Karmazin was Imus' boss for many years at WFAN in New York. "But there are other possibilities: cable TV -- including, probably, channels that haven't even been invented yet -- and broadband radio." Others, though, think Imus -- who's 67 -- may just hang up his mike, figuring it's not worth the hassle.

Personally, I think the strongest argument that Imus will attempt a comeback is that he won't want to go out as a defeated figure convicted in the court of public opinion of racism. But I also think there are a lot of obstacles to a comeback -- especially on what may seem like the obvious choice, satellite radio, where other infamous shock jocks like Howard Stern and Opie and Anthony have found happy homes, out of the reach of the FCC and advertiser boycotts. The proposed merger of XM and Sirius, the two satellite radio companies, creates real difficulties for Imus.

One is that the merger means the era of zillion-dollar contracts as the two companies compete for talent is over. Another is that the merger requires governmental approval, and opponents are already citing Stern's presence on Sirius as a good reason not to further the company's reach. Imus right now is even more toxic. If he indeed winds up on satellite radio, I don't think it will be for several months, until the merger has been resolved, and even then he'll be working at bargain-basement rates.