Networks Ask That Indecency Rulings Be Overturned

Nov 22, 2006  •  Post A Comment

For the second time in three days, a federal appellate court is being asked to overturn the Federal Communications Commission’s indecency rulings.

This time, Fox Television Stations, CBS Broadcasting and NBC Universal have challenged part of an omnibus order that the FCC intended to resolve indecency complaints about more than 50 shows airing between February 2002 and March 2005. CBS on Monday challenged the FCC’s action on the Janet Jackson “wardrobe malfunction” during Super Bowl halftime show in 2004.

The FCC intended the omnibus order to indicate its future direction on indecency cases, with part involving use of profanity. The FCC said Fox stations violated indecency rules in airing the 2002 and 2003 broadcasts of the Golden Globe Awards, during which Cher and Nicole Richie uttered profanities, but imposed no fine. The FCC also said CBS’s “The Early Show” violated indecency rules because a former “Survivor: Vanuatu” contestant referred to another contestant as a “bullshitter” during an interview, but later reversed itself even as it warned “there is no outright news exemption from our indecency rules.”

Fox, in a filing in the 2nd U.S. Circuit Court of Appeals in New York, argued Wednesday that the FCC’s profanity policy was unconstitutional, “arbitrary” and will punish broadcasters based on subjective views about the value of the speech. Fox called the FCC’s action “the latest installment of [its] radical reinterpretation and expansion of its authority to punish severely what it deems to be ‘indecent’ speech.”

“Since the mid-1970s the agency has carefully observed a cautious and limited enforcement policy that … never punished unintentional or isolated expletives,” Fox said in the filing. “The FCC is now abandoning its longstanding policy of restraint. The result is the end of truly live television and a gross expansion of the FCC’s intrusion into the creative and editorial process.”

Fox also said that, together with the FCC’s decision that the broadcast of “Saving Private Ryan” was not actionable, “leaves broadcasters with no guidance whatsoever” on profanity.

CBS in its filing argued that the FCC actions repudiate precedent and shatter assumptions on which courts relied in allowing the FCC to act on indecency. The network also argued that the FCC cannot unilaterally declare a broadcast “patently offensive” measured against “a national community standard” without outside evidence that it is and warned that the FCC’s use of its own “contextual analysis” as a basis “is infinitely malleable and effectively affords the commission unbridled discretion to punish protected expression.”

NBC Universal wasn’t mentioned in the FCC’s action but intervened because the ruling hinged on the FCC’s earlier ruling that Bono’s “f**king brilliant” comment on NBC’s 2003 “Golden Globe Awards” broadcast was indecent, a decision NBC wants to overturn. NBC called the FCC’s profanity decisions “radical” and “a textbook example” of an “arbitrary and capricious” agency. It said the FCC’s allowing soldiers in “Saving Private Ryan” to say “f**k” and shit,” but not blues singers in a Martin Scorsese documentary that aired on a PBS station, creates confusion.

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

FCC spokesman David Fiske said Wednesday, “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.”