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CBS Will Revise Profanity Opposition

CBS says it will revise its court filing opposing the FCC's remand of profanity decisions in order to delete references that prompted the FCC to file its own motion to quash the CBS filing

“We disagree with the Commission's filing, " CBS said in a statement released to B&C, "but so the underlying remand petition can be decided solely on the merits rather than a procedural dispute, CBS will file a revised opposition to the FCC’s remand motion deleting the limited references to which the FCC objects.” 

FCC had asked the D.C. court of Appeals Monday to altogether discount CBS' opposition to its request to review four profanity rulings, and added it might want to sanction the network or its counsel further while it was at it.

The FCC said CBS' petition to the court last week included information that is inaccurate and violates the confidentiality of pre-argument conferences between the parties. The commission also said that it is bound by those same confidentiality rules not to give its side to the press, so could not counter those assertions.

The commission cited stories in Broadcasting & Cable (Exhibit 1, in fact) and Communications Daily as examples of  that press coverage, which it said "compounded the unfairness" of its not being able to respond to the revelations in the CBS opposition. The chairman's office had no official comment on the allegations when B&C sought a response Friday.

CBS in its filing had cited two pre-argument conference calls with the FCC concerning the remand, saying that "in the conference calls among the parties, the commission categorically refused to consider holding in abeyance its new policy enforcing its indecency rules against 'profane' speech or against isolated, fleeting expletives."

"The disclosures in CBS' filing are particularly unfair to the commission," the FCC told the court. "They appear to be intended to portray the commission as having acted in bad faith, when in fact the exact opposite is true."

At issue are four profanity rulings released as part of the FCC's omnibus March indecency order. The commission levied no fines because the incidents occurred before it had toughened its enforcement of profanity rules, but it also provided no avenue to appeal the decisions beyond going to court. The networks and affiliates took the four decisions to court, with the first briefs scheduled for Wednesday.

But, saying it had been a procedural defect to bypass the normal appeals process (even though it said the reason was to provide guidance without penalty), the FCC July 5 asked the court to take a second look at those four decisions, including one against CBS' Early Show. It promised to rule again in 60 days, and asked the court to delay the start of the case.

Although the networks and stations had joined to challenge the rulings, three of the four affiliate associations and the ABC Network supported the FCC's request for a remand though ABC had some qualifiers. Fox, its affiliates, and CBS opposed the review. The FCC's request to strike the opposition to remand applies only to CBS.
The court is expected to rule on the FCC remand request before Wednesday's deadline for opening briefs.