Dish Has ‘Free Speech TV’ Problem

Does a left-leaning network with occasional nudity, some profanity and a rather hefty dose of Bush-bashing deserve a slot on a satellite service’s family-friendly programming tier?

Federal Communications Commission chairman Kevin Martin might need to bring the matter to a head next month after EchoStar Communications Corp. launches its “Dish Family” tier without the edgy fare of Free Speech TV.

Martin, the Republican chief of the nation’s main regulator of video programming, just finished pushing cable- and satellite-television companies to launch packages of channels that exclude profanity, sex and violence. Many heeded his call, including EchoStar.

But here’s Martin’s predicament: FSTV has a carriage deal with EchoStar pursuant to FCC rules adopted in 1998 that require direct-broadcast satellite carriers to create channel space "for noncommercial programming of an educational or informational nature."

The programming covered by the FCC’s rules must be offered to all satellite subscribers at no additional charge and without any editorial interference from the satellite provider. FCC rules do not address whether family tiers can exclude channels like FSTV with programming that would be deemed indecent under FCC rules that apply to local TV stations.

The FCC was required to establish the DBS set-aside program under section 25 of the Cable Consumer Projection and Competition Act of 1992.

Catering to the political left on social, political and environmental issues, 10-year-old FSTV has a primetime schedule that includes such hour-long programs as Gay USA, Dyke TV and Behind Every Terrorist -- There Is a Bush. Another show, Prison Lullabies, is about "four women struggling with drug addiction" who were "pregnant at the time of their arrest and have all given birth behind bars."

On occasion, FSTV programming includes male and female nudity and the “F-word” unbleeped.

"I would say it does occur from time to time," said general manager Jon Stout of FSTV, which is based in Boulder, Colo. Stout added that he attempts to air that kind of programming at late-night times when most kids are in bed.

When EchoStar unveiled its 40-channel family tier two weeks ago, it disclosed the names of 31 channels to be carried, leaving the rest blank. The lineup so far includes just one public-interest channel, RFD-TV, which provides farm reports, ranching programs and some religious fare for its rural-American target audience.

FSTV was excluded because "we want to offer consumers a family package, a safe haven," EchoStar general counsel and executive vice president David Moskowitz said.

To some extent, cable is facing a similar problem. Under the same 1992 Cable Act, cable systems must carry, and subscribers must purchase, local TV stations and public-access channels in the basic tier at the same time they purchase a family tier from Comcast Corp. or Time Warner Cable.

Indecent programming aired by TV stations and PEG (public, educational and government) channels is beyond the cable system's editorial control. EchoStar's exclusion of FSTV could spark a fight at the FCC.

"Yes, I would have a problem with that," said Andrew Jay Schwartzman, president of the Media Access Project, a public-interest law firm that fought at the FCC to reserve 4% of satellite channels for noncommercial channels like FSTV.

Schwartzman said his preference would be to let families decide whether to block FSTV. "This is not a complete solution, you understand,” he added. “The way out of it is that DirecTV [Inc.] and Dish have much more effective parental-control devices than cable has in the first place. You can block out on a per-channel basis a lot easier than you can on cable."

DirecTV, which does not carry FSTV, is launching its own family tier in April. DirecTV has doubts that FCC rules require family-tier placement of the set-aside channels, according to someone familiar with the company’s thinking who declined to be identified.

But, playing it safe, the top U.S. satellite-TV provider decided to include the set-aside channels in the family package anyway.

An FCC spokeswoman, who asked not to be identified, said that if there is a dispute over FSTV, the agency would likely need to decide whether FSTV can be excluded even though the rules state that the channel "must be available" to all satellite subscribers. EchoStar officials plan to discuss FSTV with the FCC.

"If the FCC takes the position that we are obligated to offer all of the public-interest channels even though some don't appear to be consistent with the family package, then we will have no choice but to do so," Moskowitz said. "If the FCC agrees with us that there is a reasonable basis in the law and rules to exclude certain channels from the package, that would certainly be our preference."