Networks: Fine for 'Blue' unconstitutional

Fox, NBC, Telemundo, CBS file brief against FCC

The fight against the FCC's $1.2 million fine for airing a woman's butt during a 2003 episode of "NYPD Blue" continued Friday with the filing of a brief by Fox, NBC, Telemundo and CBS, who contend the government's actions are unconstitutional.

The intervenor filing by the broadcasters claim the FCC's order "reveals various starkly unlawful and unconstitutional aspects" of an "expanding regime" bent on enforcing bans on "indecent" broadcasting.

The 55-page filing lays out three areas in which the networks claims the FCC is violating ABC's rights:

-- There were no bona fide complaints filed by viewers

-- The FCC's indecency enforcement is "constitutionally vague" and invites subjective decision making

-- The U.S. Supreme Court has ruled over the years that any ban on protected speech is unconstitutional if there is a technological way from allowing individuals to block that speech in their homes, like the V-Chip.

Siding with ABC, the four networks filing the intervenor brief claim all the complaints received by the FCC were form letters filed by activist groups.

"Although the courts have repeatedly insisted that the FCC act with restraint, and the FCC's own stated policies have always identified a viewer complaint as a necessary prerequisite to FCC action, the FCC now relies on form complaints generated by activist groups like the American Family Association and Parents Television Council as a valid basis for an FCC investigation and forfeiture," the brief states.

The FCC fined ABC and 45 stations that aired the show, with the maximum amount levied against ABC.

The network paid the $1.2 million fine then appealed to New York's 2nd Circuit Court of Appeal, claiming the commission's decision is "arbitrary, capricious and contrary to the law."

The FCC has said it will defend the order and continue to enforce the law when inappropriate content is aired at a time when children are watching TV.