Trio of webs challenge FCC

WASHINGTON — Fox came out swinging against the Federal Communications Commission last week, accusing the agency of embarking on a “radical reinterpretation and expansion of its authority.”

Network joined CBS and NBC in filing briefs in their federal court challenge of a package of indecency rulings issued in March by the FCC.

Fox said the agency and its attempt to clean up the airwaves “violates both the statute and principles of administrative law and…does serious violence to the First Amendment.”

Given Rupert Murdoch’s well-known personal conservative values, it’s ironic that Fox would choose to battle the very administration it favors.

As it has before, the agency continued to frame the dispute as a struggle between Hollywood and decency.

Collectively, the individual briefs are based on an amalgam of previously made arguments and some newly elaborated points.

All three nets noted that for decades, the FCC employed a policy of restraint on indecent content, which falls under constitutionally protected speech. In the late 1970s, the Supreme Court upheld the commission’s authority to police airwaves — but only under narrow, circumscribed terms.

Among the more important terms was an exception for “fleeting” or “unscripted” instances of profanity. For a broadcast to be deemed indecent, the court said, expletives had to be deliberate and repeated.

But all three nets said the FCC had abandoned that approach in favor of a “zero-tolerance” policy that’s “a direct repudiation of governing constitutional principles set forth by the Supreme Court,” as CBS said in its brief.

The broadcasts that are the subject of the challenged indecency rulings all involved fleeting, unscripted profanities in a live setting.

According to the briefs, rather than explain its change of policy — as required by law — the FCC has denied any change of policy has occurred. “This latest evasion of its administrative law responsibility borders on the frivolous,” Fox said.

By denying any change of policy, the FCC is “rewriting history,” NBC said. The Peacock was the target of an FCC indecency investigation following its 2003 broadcast of the Golden Globe Awards, during which rocker Bono said, “This is fucking brilliant” upon winning an award. Regulators first said that, per the Supreme Court’s guidelines, the incident could not be deemed indecent.

A public outcry led by social conservative groups pressured the FCC to reconsider the decision. The agency eventually reversed itself and said the Golden Globe incident was indecent — but declined to issue a fine.

This was “a textbook case” of “flip-flopping” that has created extensive confusion, NBC attorneys said. Moreover, “Behind the scenes the commission actively subjects broadcasters to indecency inquiries on programs ranging from the Olympics to college football to scripted primetime programming, which can and do drag on for years,” they added. “These open-ended enforcement efforts add to the confusion and uncertainty about what content can and cannot be broadcast without sanction.

“In this environment, it is impossible for broadcasters to reliably predict what the commission will find indecent and what it will not,” NBC concluded.

The FCC responded to Fox’s brief with a statement virtually identical to the one it made when nets announced intention to challenge the March rulings: “By continuing to argue that it is OK to say the F-word and the S-word on television whenever it wants, Hollywood is demonstrating once again how out-of-touch it is with the American people. We believe there should be some limits on what can be shown on television when children are likely to be watching.”

Fox attorneys implicitly disputed that claim, writing in their brief, “Under the FCC’s new policy, virtually any use of the words ‘fuck’ and ‘shit’ are prohibited, no matter how isolated or fleeting, no matter how inadvertent, and no matter whether they occur spontaneously during live programming. The result is the end of truly live television and a gross expansion of the FCC’s intrusion into the creative and editorial process.”

Similarly, the Eye said, “Contrary to the recent statements by the FCC suggesting we are seeking the right to use expletives at will in our programming, all CBS is seeking is a return to the FCC’s previous time-honored practice of more measured indecency enforcement.”

Last March, the FCC issued an omnibus order of indecency rulings, which cited four broadcasts for violations — CBS’ “The Early Show,” ABC’s “NYPD Blue,” and Fox’s live broadcasts of the 2002 and 2003 Billboard Music Awards. Each involved what the FCC deemed to be actionable profanity, but the agency issued no fine in any of the cases, saying the rulings were meant primarily to give future guidance to broadcasters on indecency standards.

All three nets announced legal challenges of the omnibus order; NBC joined under intervenor status. Late last summer, as the cases were to begin with filing of briefs, the FCC asked the federal appeals court to delay the proceedings and remand the omnibus order for reconsideration. The court agreed.

On Nov. 6, the commission announced that upon review of its omnibus order, it was reversing the indecency findings against CBS and ABC, but letting stand the two against Fox. ABC withdrew from the court challenge, but CBS remained as a petitioner because its attorneys believe the FCC’s decision to drop the finding against “The Early Show” did not resolve any issues raised in the case.

The FCC must reply to the nets’ briefs in two weeks.

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