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Broadcasters Fight Bono Ruling

After months of apologizing to Congress and the Federal Communications Commission for Janet Jackson’s Super Bowl breast-baring and other edgy on-air content, many of the country’s media companies have finally decided the feds have gone too far.

Monday, April 19, Viacom, Fox, RadioOne and a handful of mid-sized broadcast groups including Citadel, Beasley and Intercom, will join with activists like People for the America Way and Media Access Project to ask the FCC to rescind its recent decision that the F-word, and any other word the commissioners don’t like, can be punished with major fines or license revocations.

At press time, neither NBC, whose broadcast of a Bono expletive on the Golden Globes prompted the FCC decision, nor ABC, had joined the fight. NBC was expected to file a separate petition Monday. ABC is not planning to weigh in.

Even a few performers are getting in on the action, though. Also asking the FCC to back down are illusionists Penn & Teller and comedian Margaret Cho. Not surprising, since Washington is trying to crack down on performers as well as media companies.

If the FCC doesn’t strike the Bono ruling, the author of the petition warned commissioners, his clients will appeal in federal court.

The likely result, and the thinly veiled aim of the petition, is a legal battle that would land every piece of Washington’s anti-indecency crackdown in the Supreme Court, where lawyer Bob Corn-Revere, of firm Davis Wright Tremaine, believes firmly they will win.

"The commission’s harsh new policy has sent shock waves through the broadcast industry and is forcing licensees to censor speech that unquestionably is protected by the First Amendment," he wrote in the petition. "The FCC consciously assumed the role of a national arbiter of good taste, and its decision already is exerting a chilling effect."

The petition chronicles broadcasters' subsequent decisions to scrub their programming of  content likely to draw scrutinizing eyes and ears.

That includes NBC/ER’s decision to blur an 80-year-old woman’s exposed breast in one scene, networks’ implementation of 5-second, or more, delays during live shows; deletion of a hint of cleavage from a PBS documentary; firing of raunchy DJs; and even a public station’s dismissal of longtime host Sandra Tsing.

Even radio rock standards like the Who’s "Who Are You?," and Pink Floyd’s "Money," have been edited for radio on some stations or dropped from playlists altogether.

Corn-Revere highlighted what he says are a muddle of recent FCC reversals of indecency rulings that, if nothing else, illustrate the commission’s near-impossible task of upholding its legal obligations to both protect children from supposedly harmful broadcast content and avoid trampling on programmers’ speech.

The Golden Globes case is a perfect example. The Parents’ Television Council kicked its fight into high gear not after the show aired in January 2003, but six months later when the FCC staff ruled that Bono’s "fleeting" "F---ing brilliant" during a live show didn’t warrant punishment of NBC stations.

Corn-Revere also points out that FCC decisions saying euphemisms may also be indecent raise the question of whether the "F-word" itself, or frigging or a host of others, might also be off limits.

While broadcasters have been bending over backward to alter their programming practices, the challenge is not entirely unexpected.

Throughout the indecency crackdown, including in indecency hearings in Washington, Viacom, for one, has been careful to characterize its actions--delays, firings, guidelines to DJs--as a response to what it, not Washington, no longer wants on its air. By doing so, it has left the legal issue of indecency open for just such a challenge.

When pressed by legislators at the hearings, and later by Senator Sam Brownback (R-Kan.) in a letter, Viacom President Mel Karmazin refused to pronounce any content indecent, pointing out that that determination was a matter for the company's lawyers to determine.

Alone among the big media companies, Viacom has been open about its willingness to challenge the indecency crackdown in the courts.--John Eggerton contributed to this story.