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Fox, NBC Say FCC Lacks Authority to Ban Indecency

NBC and Fox have told a federal appeals court that the FCC has no business, or legal justification, for continuing to ban indecent content at any time of day.

The pair of programmers/station owners are taking aim at the FCC's "expanding" indecency enforcement regime," calling it "starkly unlawful and unconstitutional." 

That defense of ABC and the First Amendment came in a joint brief filed Friday with the Second Circuit Court of Appeals. That is the court that ishearing the challenge of ABC and its affiliates of the FCC’s $1 million-plus fine against them for a 2003 episode of NYPD Blue that showed too much of a woman’s backside and side for the FCC’s liking.

In the intervenor brief, Fox and NBC Universal (including Telemundo), point to three key areas of concern. They argue that the indecency fine was levied despite any complaints from actual viewers, saying that alone was grounds for reversal.

But they also said the FCC's entire indecency enforcement regime is unconstitutionally vague and "invites impermissible subjective decisionmaking by the FCC." And if that were not sufficient, they say a ban on protected speech is unconstitutional because there is a more narrowly tailored alternative--the V-chip/ratings system.

Fox and NBC were taking their cue from the Supreme Court's decision in the Playboy case that the availability of channel-blocking technology meant a time and place restriction on such programming was unacceptable. "Accordingly," they argued, "there is no longer any constitutional justification for continuing to ban the broadcast of indecent material."

The briefs from ABC and ABC affiliates--two separate briefs--are exepcted to be filed later today (June 20), but were not available at press time.

ABC paid a fine of $1,237,500 in February -- a step it said it needed to take so that it could go immediatelyto court in the U.S. Court of Appeals for the Second Circuit. That is the same court that found the FCC’s fleeting indecency policy arbitrary and capricious, but the FCC said the issue is not fleeting, but lingering, nudity.

The ABC affiliates and owned stations appealed the decision, but the FCC rejected the appeal, concluding that “the depiction of an adult woman’s naked buttocks on Blue was sufficiently graphic and explicit to support an indecency finding.”

The FCC is fighting a court battle on at least three indecency fronts. It convinced the Supreme Court to review the Second Circuit’s smackdown of its profanity decision against Fox, and it is awaiting a federal appeals court decision (the Third Circuit) on CBS’ appeal of the Janet Jackson fine.