Fox’s live broadcasts of the 2002 and 2003 Billboard Music Awards shows contained “indecent and profane” language, and FCC regulators were justified in citing them for indecency violations, attorneys for the agency argued in court papers filed Wednesday afternoon.
They also charged Fox and two other nets involved in the legal challenge — CBS and NBC — with trying to “change the subject” in their court papers filed two weeks ago.
On one of the broadcasts, Cher said “fuck ’em” to critics who’ve claimed for years that her career was over. On the other, Nicole Richie said, “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”
The nets argued that, by citing the broadcasts for indecency violations, the FCC was overstepping its authority and also departing, without explanation, from a previously restrained approach to policing the airwaves — one that didn’t penalize for “fleeting” expletives in a live setting.
FCC lawyers claimed that the agency had explained clearly its new approach, which it said was based on “contemporary community standards” that would find virtually any use of the above expletives to be indecent and profane.
In its brief, Fox failed to offer “any justification — such as artistic necessity — for the use of the F-word and the S-word by Nicole Richie and Cher,” the FCC papers continued. “Indeed, Fox has little to say about these broadcasts. Instead, both Fox and the intervenors seek to divert this court’s attention to unrelated issues raised by other FCC orders, many of which are not yet final. The court should reject Fox’s effort to change the subject.”
Agency attorneys took broad swipes in several directions, such as Fox’s claim that the FCC’s indecency standard is vague. “Fox cannot raise a vagueness challenge here, since its broadcasts lie far from any zone of uncertainty that might exist at the margins of the indecency standard’s application.
“Nor is Fox correct when it argues that the V-chip is a constitutionally required less-restrictive means of shielding children from broadcast indecency,” papers continued. “Regulations of broadcasting are subject only to intermediate scrutiny, which has no least-restrictive-means requirement. Moreover, the commission amassed extensive evidence that the V-chip is ineffective.”
Fox did not have an immediate response to the court filing.
Last March, the FCC issued an omnibus order of indecency rulings citing four broadcasts for violations — CBS’ “The Early Show” and ABC’s “NYPD Blue” as well as Fox’s broadcasts of the 2002 and 2003 Billboard Music Awards. Each involved what the FCC deemed to be actionable language, 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.
Besides, the agency said, all four incidents occurred prior to a 2004 ruling the FCC issued saying that virtually any utterance of profanity or indecent language would be deemed a violation.
All three nets announced legal challenges of the omnibus order; even though it was not cited for any violations in the March 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 case is skedded for oral arguments on Dec. 20.