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ABC Joins Fox, CBS to Fight Profanity Appeal

CBS and ABC joined Fox to ask the Supreme Court not to review a lower-court decision that essentially took the Federal Communications Commission to the woodshed for failing to justify its crackdown on fleeting profanity.

While Fox and CBS have been together from the beginning of the challenge, ABC stepped away after the FCC rescinded its profanity finding against the network over NYPD Blue.

But in the wake of the FCC's $1.4 million fine for nonfleeting nudity in that show two weeks ago, ABC added its name to the Supreme Court petition in recent days, according to a source familiar with the filing.

NBC is filing its own brief, which was not available at press time. Although no NBC shows were involved, the network is said to believe the issue is important enough for it to weigh in separately. Both filings are responding to the FCC's request that the High Court review last year's decision by the Second Circuit Court of Appeals.

In the brief, filed with the court Friday afternoon, Fox and friends argued that the Second Circuit got it right when it concluded that the FCC had "failed to provide a reasoned basis for reversing its longstanding indecency-enforcement policy with respect to isolated and fleeting expletives."

At issue were profanities uttered by Nicole Richie and Cher in 2002 and 2003 during Fox broadcasts of the Billboard Music Awards, as well as those on CBS' Early Show.

The FCC had found the utterances indecent as part of an omnibus March 2006 order that did not levy fines against some shows but indicated which shows the commission deemed indecent in an effort to provide guidlines for broadcasters. FCC chairman Kevin Martin said at the time that broadcasters had asked for such guidance.

The broadcasters told the High Court that there was no conflict with another court of appeals on the issue, nor did it raise any "important question" about administrative law that conflicts with precedent.

The Second Circuit decision did not extend to the question of the the FCC's broader indecency-enforcement powers. The decision instead turned on the court's finding that the commission had not offered a reasoned justification for its change in policy, which began when it reversed its own 2004 finding that fleeting profanity in a earlier awards show on another network (courtesy of U2's Bono on NBC's Golden Globes broadcast) was not indecent.

The FCC had argued in its filing that the Second Circuit decision meant that the commission could no longer take context into account when regulating indecency, which would put the decision in conflict with the court's decision in the Pacifica case (the so-called seven dirty words case).

Fox and company countered that that was a fundamental misreading of the case, and that the Second Circuit was simply asking the FCC to better justify its change in policy after 30 years of not cracking down on isolated or fleeting profanities.

The broadcasters pointed out that the Pacifica decision was a narrow one, citing that court's own admonition in the decision that it "did not speak to cases involving the isolated use or a potentially offensive word."

Martin has pointed out that the court also signaled that it would be nearly impossible to provide such a rationale, which is one of the reasons why the FCC sought Supreme Court review.

Andrew J. Schwartzman, head of Media Access Project, said he was "happy" with the Fox-led filing and that MAP will lend its support rather than filing separately. MAP represents Hollywood group the Center for Creative Voices in Media, with creative voices including NYPD Blue creator Steven Bochco, Tom Fontana (Homicide) and Vin Di Bona, whose America's Funniest Home Videos flirted with an indecency fine following a complaint about a pacifier wedged in a baby's behind.

If the court doesn't take the case, the FCC will either have to justify its enforcement to the Second Circuit or modify its profanity-enforcement policy. But if it does the latter, it could be even stricter. The FCC had defended its crackdown on “fleeting profanities,” saying that it was defending kids against the “first blow” from those words. The Second Circuit pointed out that the commission did not find the words indecent in Saving Private Ryan, for example, and that it did not see why that was any less of a “first blow.”