Fox challenges FCC authority over indecency

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WASHINGTON -- The government's new policy that is punishing broadcasters for a slip of the tongue is killing live television as it allows the FCC to look over producers' shoulders and edit content, the Fox network told a federal appeals court in New York on Wednesday in a key case challenging commission authority over indecent broadcasts.

In its brief, the network contends that the FCC is doing "serious violence to the First Amendment" with its policy that finds certain words so vile they are automatically actionable under its indecency rules.

"Under the FCC's new policy, virtually any uses 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 programing," Fox attorneys argue. "The result is the end of truly live television and a gross expansion of the FCC's intrusion in the creative and editorial process. The FCC now second-guesses creative decisions on a show-by-show basis, levying huge fines if the artist or broadcaster has misjudged what the FCC's current commissioners will find offensive."

In particular the case involved Fox's broadcasts of the 2002 and 2003 "Billboard Music Awards." During the 2002 show Cher told the audience "People have been telling me I'm on the way out every year? So fuck 'em." While in 2003 Nicole Ritchie said: "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."

While the commission found that the shows violated the broadcast indecency rules it didn't issue a fine, because the shows predated a policy established in 2004 after Bono said wining a Golden Globe was "really, really fucking brilliant."

The FCC maintains that its policy is necessary to restrain the Hollywood creative community which would go berserk if not restrained.

"By continuing to argue that it is okay 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," said FCC spokesman David Fiske. "We believe there should be some limits on what can be shown on television when children are likely to be watching."

But the TV networks say that's bull. Newspapers can print whatever words they want, but ones with wide family circulation don't print the words in question. If newspapers can do it, and don't, then why would broadcasters take a different course, argued one network executive.

In their appeal, Fox contends that they, like most of the other networks, aren't demanding that the FCC abdicate its responsibility, but rather exercise it with the restraint shown in the past.

"The FCC's abandonment of its restrained enforcement policy -- which was grounded in (court rulings) and has served the public for three decades -- violates the statute of administrative principles and it does serious violence to the First Amendment."

Since the FCC's decision in the Golden Globes case, the policy has been controversial as broadcasters argue that the commission changed the long-standing policy that held broadcasters blameless for the unplanned utterance of individual words. This case, in the Second Circuit Court of Appeals in New York, and another in the 3rd Circuit Court of Appeals in Philadelphia involving CBS's broadcast of the 2004 Superbowl halftime show in which Janet Jackon's breast was bared, both challenge the government's enforcement of its indecency statutes.

As defined by the FCC, material is indecent if it "in context, depicts or describes sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the broadcast medium." While obscene speech is not protected by the First Amendment, indecent speech is, as the federal courts and the FCC have ruled that such speech can be safely aired from 10 p.m.-6 a.m.

Fox contends that it had no idea Cher or Ritchie were going to use those words so they should not be held responsible.

The network also questions veracity of the policy's ability to protect children and contends that less-intrusive means like the V-chip exist to implement a policy regulating speech. In speech-regulation cases, the government is required to use the least restrictive means.

It also contends that commission flip-flops on individual shows and violations make it impossible to figure out what exactly the agency means. It pointed out that the commission has said the use of versions of "fuck" and "shit" in the Steven Spielberg movie "Saving Private Ryan" is not actionable while their use in the Martin Scorsese documentary "The Blues: Godfathers and Sons" is.

"The FCC cannot explain why in some cases he perceived merit of the material -- even material that uses expletives prolifically -- saves some broadcasts from a finding of patent offensiveness but not others," Fox wrote.

The core of Fox's argument, however, lies at the damage the commission can do to the rights reserved to First Amendment speakers.

"Instead of legal standards, the commission's contemporary communities standards for the broadcast medium are determined only by the commissions 'collective experience and knowledge'," Fox wrote. "This assertion of 'we-know-it-when-we-see-it' -- or worse, 'we-know-it-when-someone-with-political-influence-over-us-says-we-see-it' -- is not a plainly-expressed legal standard that allowed for predictive judgments by broadcasters."
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