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 Federal  Communications  Commission  Washington,  D.  C.  20554 
 December  14,  2004  DA  04-  3907 
 Released:  December  15,  2004 
 Mr.  Saul  Levine  Mt.  Wilson  FM  Broadcasters,  Inc. 
 1500  Cotner  Ave.  Los  Ángeles,  CA  90025 


 Re:  SDARS  Program  Content  Rulemaking  Petition 
 Dear  Mr.  Levine: 
 This  letter  acknowledges  receipt  of  the  petition  you  filed,  dated  October  28,  2004,  asking  the  Commission  to  commence  a  rulemaking  proceeding  to  amend  the  Satellite  Digital  Audio  Radio 
 Service  (“  SDARS”)  rules  to  include  an  “indecency”  provision  analogous  to  that  found  in  Section  73.3999  of  the  Commission’s  rules. 


 Both  SDARS  licensees,  as  is  permitted  under  the  Commission’s  rules  (Establishment  of  Rules  and  Policies  for  the  Digital  Audio  Radio  Satellite  Service,  12  FCC  Rcd  5754,  5788  (1997)), 
 are  providing  service  on  a  subscription  basis.  The  Commission  has  previously  ruled  that  “subscription-  based  services  do  not  call  into  play  the  issue  of  indecency,”  Litigation  Recovery  Trust, 
 17  FCC  Rcd  21852,  21856  (2002),  and  that  “[  c]  onsistent  with  existing  case  law,  the  Commission  does  not  impose  regulations  regarding  indecency  on  services  lacking  the  indiscriminate  access  to 
 children  that  characterizes  broadcasting.”  Harriscope  of  Chicago,  Inc.,  3  FCC  Rcd  757,  760  n.  2  (1988),  citing  Cruz  v.  Ferre,  755  F.  2d  1415,  1420  (11  th  Cir.  1985)  and  Jones  v.  Wilkerson,  800  F.  2d 
 989  (10  th  Cir.  1986),  aff’d,  480  U.  S.  926  (1987).  See  also  FCC  v.  Pacifica  Foundation,  439  U.  S.  726,  748-  750  (1978).  Your  petition  does  not  provide  a  basis  to  revisit  that  determination. 


 Based  on  these  precedents  and  pursuant  to  Section  1.407  of  the  Commission’s  rules,  we  decline  to  grant  your  rulemaking  request. 
 Sincerely, 


 W.  Kenneth  Ferree  Chief,  Media  Bureau 
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