Fox Broadcasting Co. and the vast majority of the network’s affiliates on Friday challenged a $1.183 million Federal Communications Commission indecency fine, charging that the agency’s action violates the First Amendment.
Breaking new ground, the FCC recently imposed a $7,000 fine on each of the network’s 169 affiliates that carried an April 7, 2003, episode of the reality show “Married by America” for alleged violations of agency indecency prohibitions.
The FCC said the episode included a broad range of overtly sexual behavior, including suggestive spanking and lap dances by topless strippers with their breasts partly blurred. But in their challenge to the fines, Fox and its affiliates said the programming would not have been considered indecent under the agency’s previous standards.
Fox and its affiliates said the agency created a new standard-that the “sexual nature” of the programming was inescapable-to rationalize the massive fine.
“There is simply no way that broadcasters could have been on notice that they would be held liable for scenes that are merely `sexual in nature,”‘ Fox said. Fox and its affiliates also argued that even if the FCC continues to stand by its new standard, the agency should not hold Fox’s affiliates liable for a show the stations didn’t pre-screen.
“The Commission’s indecency regulations no longer can withstand constitutional scrutiny,” added Fox, threatening to challenge the agency’s fundamental right to continue regulating broadcast indecency unless the agency backs down. “The massive expansion of cable and satellite video programming, together with the advent of the Internet, renders obsolete the second-class treatment of broadcasters under the First Amendment.”