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Broadcasters Take Indecency Actions to Court

In an apparently unprecedented move, the broadcast networks, their affiliate associations, and Hearst-Argyle are going to court to overturn some of the FCC's recent proposed indecency actions, saying some of them were unconstitutional.

Last month, the commission released a raft of proposed fines totaling over $3 million against stations airing a variety of shows, including CBS' Without a Trace, although that fine was for sexual content.

The statement released Friday from the four networks and affiliates was regarding "several" of the rulings that deal with profanity. The incidents in question occurred during a 2004 airing of CBS’ The Early Show, Fox’s 2002 and 2003 broadcast of The Billboard Music Awards and a 2003 episode of ABC’s NYPD Blue. NBC did not have a program involved.

The challenging parties didn't appeal the whole order, only the parts where broadcasters were found in violation of the law but not actually fined. Other cases in which fines were levied first have to go though an administrative appeals process inside the commission before they go to court.

The appeal, filed in federal courts including the United States Court of Appeals for the Second Circuit in

New York, represents the four network affiliate groups and more than 800 stations.

Separately, CBS responded Friday to the FCC fines on the Janet Jackson Super Bowl incident and the proposed fine against Without a Trace, saying they were not indecent. When those rulings were issued, CBS indicated that it would "fight the fines.”

In their statement about the suit, the networks and affiliates said:

“We strongly believe that several of the FCC rulings issued on March 15 are unconstitutional, and find them inconsistent with two decades of previous FCC decisions.  In filing these court appeals we are seeking to overturn the FCC decisions that the broadcast of fleeting, isolated—and in some cases unintentional—words rendered these programs indecent.

"The FCC overstepped its authority in an attempt to regulate content protected by the First Amendment, acted arbitrarily and failed to provide broadcasters with a clear and consistent standard for determining what content is indecent. Furthermore, the FCC rulings underscore the inherent problem in growing government control over what viewers should and shouldn’t see on television. Parents currently have the ability to control and block programming they deem inappropriate for family viewing from entering their home through the use of the V-chip and cable- and satellite-blocking technologies."

The language in the last sentence is important, tying the V-chip to the cable- and satellite-blocking technologies. The Supreme Court has ruled that available content blocking technology—it does not necessarily have to be used, is a less restrictive means to the government interest in shielding children from indecent content than a ban.
The networks have emphasized the V-chip/ratings system in recent months, with NBC last year agreeing for the first time to use content descriptors, as the other networks do.

Getting everyone on the same page could preface the court argument that broadcasters, like satellite and cable, have available blocking technology and should have the same immunity from FCC content regulations.
Not surprisingly, the challenge did not sit well with indecency foes, the Parents Television Council. "

“The broadcast networks are spitting in the faces of millions of Americans by saying they should be allowed to air the ‘f-word’ and ‘s-word’ on television,"said PTC President Brent Bozell in a statement. "This suggestion by the networks is utterly shameless.” --Allison Romano contributed to this report