Fox Broadcasting Co. and its affiliates have decided to fight a $1.183 million Federal Communications Commission indecency fine, opening a second industry front against agency regulation that is already being challenged by CBS, industry sources said last week.
CBS waded into the battle last week with a formal challenge to an FCC decision to fine the network $550,000 for Janet Jackson’s exposure of her breast on the Super Bowl halftime show earlier this year. CBS is alleging that the FCC’s decision runs afoul of the First Amendment.
Now, according to industry sources, Fox and its affiliates are planning to follow suit with a legal challenge of their own that is expected to be made public by Dec. 3.
“In this case, they’ve gone too far, and there’s a risk that the indecency standards could be overturned by the courts,” said Clark Wadlow, an attorney for the Fox affiliates association.
Finding Ms. Jackson’s CBS flash to be in violation of agency indecency prohibitions, the FCC imposed the maximum fine available to it earlier this year-a $27,500 levy for each of CBS’s 20 owned-and-operated stations.
In its challenge at the FCC, CBS alleged that the agency’s decision failed to take into adequate account that nobody at Viacom, CBS or MTV-the Viacom-owned company that produced the halftime show-knew what was coming in the broadcast.
Even so, CBS maintained that the broadcast did not violate indecency standards that the FCC has established over the years.
“The brief flash of partial nudity that closed the halftime show was neither explicit nor graphic, did not `dwell on’ or `repeat at length’ sexual organs or activities, and was not used to titillate or shock,” CBS said.
“The commission’s expansive interpretation of its enforcement authority in this case exceeds the constitutional boundaries set forth in `FCC vs. Pacifica Foundation,’ and its lack of sensitivity to First Amendment values calls into question the entire indecency enforcement regime.”
In Fox’s case, the FCC fined each of the network’s 169 affiliates that carried an April 7, 2003, episode of the reality show “Married by America” $7,000 apiece for alleged indecency. The program focused on bachelor and bachelorette parties that the FCC believes included a broad range of overly sexual behavior, including suggestive spanking and lap dances by topless strippers with their breasts partially blurred.
Like CBS’s challenge, Fox’s will allege that the agency’s new anti-indecency regime runs afoul of the First Amendment. Sources said Fox’s challenge-which the network is planning to let all of its affiliates sign on to-is also expected to challenge a key FCC assumption in the ruling.
“The FCC appears to assume they [affiliates] had an opportunity to pre-screen the program,” said one affiliate source. “They didn’t.”