On Aug. 29 in New York, there will be a lot of profane talk.
No news flash there I suppose, but the talk will be about profanity from the parties–for and against–the FCC's request to review four profanity decisions that it did not give stations a chance to explain. A new YOrk federal appeals court will hear oral argument at 2 p.m. Tuesday.
After the FCC released the decisions–against F-words and S-words, and yes, I feel a little silly not just saying them, but it is my choice, not the government's. Anyway, after the decisions were released, stations and networks took them to court.
You see, or maybe you don't since it is deucedly complicated to explain, the FCC did not levy any fines, just said taht the words in context were indecent, in part as a guide to broadcasters going forward (the violations occurred before the FCC tightened its policy, so the commission didn't think it fair to fine them). Broadcasters have asked for more guidance on what they can and can't say and the FCC decided this would give them some.
Because the FCC did not levy fines, however, it bypassed the normal appeal process, and there was the rub because the networks and stations took the decisions to court, in part because they had not had a chance to appeal or explain their reasoning. Though the FCC said the decisions would not count against them at renewal time, that was cold comfort.
So, before the trial could begin, the FCC asked for a chance to review the decisions and let stations make their case against them, per normal procedure. Not allowing for rebuttal was a procedural problem, the FCC admitted.
Still with me.
The networks don't want the FCC to take another look, however. They want the court to rule, and maybe take some steam out of the FCC's indecency juggernaut, or add fuel to the challenge of the entire underpinning of FCC content regs. CBS has taken the Janet Jackson decision to court as well.
The stations, which joined the nets in challenging the profanity rulings, have split with them (all but Fox affils) on the remand, supporting the FCC 's decision to take a second loook.
Why, for one thing, the stations are concerned about not having enough control–advance notice, preemption freedom–over the network content that was cited in the indecency findings. After all, it is the stations who must pay the fines, not the networks.
Plus, FCC Chairman Kevin Martin has gone to bat for them on multicast must-carry, so they have an opportunity to help him out on this one.
For me, I think it's time for the courts to get their licks in, pardon the expression, on the indecency enforcement regime. For one thing, the FCC could be looking to repair its record on the four profanity decisions, maybe upholding one or two and throwing the others out, to strenghten its case when courts really start hammering it, just in case they do.
By John Eggerton
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