NBC Joins Other Big Four Networks in Supreme Court Filing vs. FCC

Mirroring a filing by Fox, ABC and CBS, NBC also asked the Supreme Court Friday not to take the Federal Communications Commission's appeal of a lower-court ruling declaring the FCC's crackdown on fleeting expletives arbitrary, capricious and unjustified.

But the NBC brief also talked about the unconstitutionality of the FCC's entire indecency-enforcement regime and why that also made the case "unripe" for review.

That's because, like the other networks, NBC said the lower court got it right. "If the commission is not required to justify changes in its views as to the meaning of particular words (which is to say, speech) -- if it is permitted to redefine words at its pleasure, there is not effective limit on the subject matter scope of the commission's indecency jurisdiction," NBC wrote.

Unlike Fox, CBS and ABC, NBC did not have any programming cited in the FCC "fleeting profanity" indecency ruling that the court struck down, but it has a dog in the fight. It was Bono's fleeting f-word on an NBC broadcast of the Golden Globe Awards that triggered what appeared to be the FCC's reversal of a longstanding policy on fleeting expletives -- the FCC has argued that it was not a reversal.

NBC is still awaiting a decision out of the FCC on Bono. The incident happened in March 2003, with the agency ruling later that year that the broadcast was not indecent because although the language was crude and offensive, it did not describe sexual or excretory functions and "fleeting and isolated remarks of this nature do not warrant commission action."

But under some pressure from Congress, the FCC reversed itself in March 2004 and said it was indecent and that such language always has some sexual or excretory meaning. NBC asked the FCC to reconsider its position in April 2004, but the FCC has yet to rule on that petition for reconsideration.

In its brief, NBC argued that the entire indecency-enforcement regime was unjustifiable. NBC said the rise of other media, cell phones, the Internet, cable and satellite meant that broadcasting is hardly uniquely pervasive. It also pointed out that the V-chip is a congressionally mandated less-restrictive means of achieving the government's legitimate interest in protecting children.

But since the lower-court decision was narrower and did not reach the constitutional question, NBC argued that the court could not hear the case without first dealing with those broader issues. "The fact that the court of appeals has not yet found occasion to address these issues consults strongly against immediate review," NBC argued.

The Parents Television Council, whose content complaints helped trigger the FCC profanity crackdown, was not happy with the move by NBC and the other nets.

“We are extremely disappointed that the broadcast networks have once again taken a stand against families," said PTC President Tim Winter in a comment e-mailed to B&C. "In the case of ABC, who among us could imagine Walt Disney filing a lawsuit urging a court grant him the ‘right’ to broadcast the ‘f-word’ in front of children?  Community decency standards should not be determined by the networks or by two judges in New York.  We urge the Supreme Court to take up this case immediately."

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.