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Fox: 'Married' Not Indecent

The 169 stations carrying the Fox Television Network are expected to
challenge the federal government's indecency crackdown by refusing to pay the
proposed $1.18 million FCC fine for a raunchy Married
by America
episode featuring strippers and whipped cream.

By repudiating what would be the largest indecency levy against a TV
program, the stations—fined $7,000 each—are essentially daring the
government to haul them into court. Under federal law, stations are under no
legal obligation to pay FCC indecency fines unless the Justice Department takes
them to court and wins a judge's order.

The dare to Washington comes as industry and free-speech activists are
putting together a coalition to combat legislation on Capitol Hill that would
hike maximum indecency fines from $32,500 to $500,000. The bill has been passed
by the House and is awaiting a Senate vote.

At deadline, the American Civil Liberties Union was drafting an appeal
to media companies and activists to mount a unified front against the
legislation. As the opposition to tougher restrictions on broadcasters mounted,
lawmakers and regulators last week further backed off threats to bring cable
under the FCC's indecency rules.

Speaking at the National Cable and Telecommunications Association Show
in San Francisco, House Judiciary Committee Chairman James Sensenbrenner
(R-Wis.) said he opposes extending indecency prohibitions to cable, which
provides easy-to-use channel-blocking capabilities. Cable “is doing what
needs to be done in giving parents the tools they need to make sure that kids
are not seeing inappropriate stuff,” he said. Some members of the Senate
Judiciary Committee have lobbied for restrictions on pay TV in indecency
regulation that makes it to the Senate floor. If a cable provision passes the
Senate, Sensenbrenner promised to “educate” House members to dissuade them
from following the Senate's lead.

Cable self-regulation

New FCC Chairman Kevin Martin also favors self-regulation of cable
rather than additional restrictions. “The cable industry,” he said at NCTA,
“has an opportunity to voluntarily step up.”

Under FCC rules, broadcasters are prohibited from airing indecent
programming between 6 a.m. and 10 p.m., when children are most likely to be
watching. To be considered indecent, a program must depict genitals or sexual
and excretory activities in a “patently offensive” manner.

If Fox stations refused to pay a fine for Married by America, they would be exercising a legal
strategy communications lawyers often threaten but rarely use. Lawyers say
Justice is unlikely to sue any station that fails to pay the standard fine.
Despite the easy escape, however, nearly all stations pay up because they
don't want to annoy the FCC, which controls license renewals, cable-carriage
disputes and other regulatory actions critical to a station's survival.

Broadcasters ready for a fight

But after a year of one record-breaking fine after another, broadcasters
are eager to fight the FCC over indecency. Besides, lawyers for Fox
Television's 35 stations and the network's 134 affiliates are gambling that
the FCC's legal case is so weak that even the lure of preserving the biggest
indecency fine in history won't pull Justice into court.

“My advice is to not pay,” says Joseph Di Scipio, an attorney for
Cohn and Marks who represents Fox affiliates. “I don't think the government
has a good case at all.”

Other Washington sources following the case predict Fox O&Os also
will refuse to pay, although lawyers for the TV group and officials for News
Corp., parent company of Fox, would not comment.

“The Married by America fine could
be reversed just on factual grounds,” says John Crigler, a First Amendment
lawyer for Washington firm Garvey Schubert Barer. “There's a lot of
argument about whether the episode meets the FCC's indecency standard.”

In their appeal to the FCC, Fox lawyers insisted the episode didn't
come close to violating the FCC's indecency standard. Nudity was obscured or
pixellated, and the show didn't dwell on any potentially offensive scene,
they said.

Di Scipio predicts the FCC will back off its proposed fine against the
134 Fox affiliates, but only because they couldn't know the content of the
episode ahead of time. The fine against the network O&Os will likely be

Married by America was a reality
program that allowed viewers to pick, from a group of singles, the pair most
likely to form a successful marriage. The scenes in question were not intended
to shock or pander to the audience, Fox says, but were integral parts of the
contest storyline.

The contestants were shown at bachelor and bachelorette parties, where
whipped cream was licked off a stripper's naked body and a male stripper put
a woman's hand down his pants. The wild parties were relevant to the
storyline, because the two contestants most discomforted by them were
ultimately picked as the winning couple.

The Married by America episode, if defended successfully, could result
in the FCC stance on indecency's being declared unconstitutional. But if the
Justice Department declines to sue Fox stations, the industry's main avenues
of attack would lie with NBC's appeal of an FCC finding against the 2003
Golden Globes, in which rock star Bono blurted out the “f-word,” or
Viacom's appeal of the $550,000 fine proposed against CBS-owned stations for
Janet Jackson's 2004 Super Bowl breast flash.

No decision is expected until Martin picks a new Enforcement Bureau
chief, probably next month.