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Networks Go After Red Lion, Pacifica

The Federal Communications Commission's current indecency-enforcement regime is unconstitutional, Fox told the Supreme Court Friday.

Saying it now exists side-by-side with hundreds of cable channels not subject to FCC rules, Fox told the court broadcasting was no longer uniquely pervasive. That was one of the justifications the Supreme Court used for upholding the Pacifica decision finding George Carlin's "Filthy Words" monologue indecent.

It also said that because kids can access indecent material through the Internet or via cable or satellite "just as easily" as they can get it via broadcasting, it is no longer uniquely accessible to children, which would also undercut Pacifica.

"The FCC has … abrogated its cautious enforcement policy and now willy-nilly punishes utterances that fall far short of the “verbal shock treatment” that for decades described what was necessary to satisfy the requirement that language be 'patently offensive,'” Fox argued.

That argument came in a brief asking it to uphold a lower-court's ruling that the FCC's crackdown on cussing was an arbitrary and capricious change in policy that broadcasters were not sufficiently warned about.

The other broadcast networks took dead aim at that regime and the underpinning of broader content regulation in their brief to the Supreme Court in support of Fox Friday, calling the FCC's effort to avoid a challenge to the constitutionality of its indecency-enforcement regime the commission's "latest bait and switch," .

In their filing, according to a copy obtained by B&C, NBC, CBS and ABC called the FCC's indecency-enforcement regime unfathomable and indefensible.

The networks were weighing in to support a lower-court decision that the FCC was wrong to find that swearing on a Fox awards show was indecent. The FCC appealed that decision and the Supreme Court agreed to take the case.

While the FCC wants the court to rule narrowly on this one instance of fleeting profanity, the networks in their filing said it is time for the court to rethink the indecency-enforcement regime altogether.

They argued that broadcasting is neither uniquely pervasive nor uniquely accessible to children -- concepts they said have been "eviscerated" in the 30 years since the Supreme Court used them to uphold the FCC's indecency enforcement authority in the Pacifica decision.

The networks went even further, taking aim at the Red Lion decision, in which the High Court upheld content regulations -- in this case the jettisoned "Fairness Doctrine" -- using the spectrum-scarcity rationale.

"Whatever its validity when Red Lion affirmed it in 1969 or in 1987 when the commission rejected it without reservation, today the scarcity rationale is totally, surely and finally defunct," the networks said.

"The antiquated notion of spectrum scarcity can no longer serve as a basis for according only 'relaxed scrutiny' to content restrictions in the broadcast media," they argued. "Nor can the outmoded premises of Pacifica -- that over-the-air broadcasting is ‘uniquely pervasive’ or ‘uniquely accessible to children.’ As with any other content-based restriction of speech, the government should be made to demonstrate that the remand order serves a compelling state interest and is the least restrictive means available to achieve that interest. It cannot do either."

At issue in the case are profanities uttered by Nicole Richie and Cher in 2002 and 2003 during Fox broadcasts of the Billboard Music Awards. Kevin Martin was not FCC chairman at the time of the violations, but he has been vigorous in his support of the fleeting-profanity and nudity-enforcement policy.

The FCC found the utterances indecent as part of an omnibus March 2006 order that did not levy fines against some shows but indicated which shows the commission deemed indecent in an effort to provide guidelines for broadcasters. Martin said at the time that broadcasters asked for such guidance.

Fox took the FCC to court and won. The Second Circuit Court of Appeals found the FCC's decision arbitrary and capricious and remanded the decision back to the commission for better justification, while suggesting it would be hard-pressed to do so. The FCC instead sought Supreme Court review, which the court agreed to do in March.

In a separate filing with the Supreme Court in support of Fox last week, TV creators said they were literally at a loss for words to know when they might run afoul of FCC rules in the wake of the agency's profanity decision. But the Center for Creative Voices in Media -- which includes the voices of Steven Bochco, Vin Di Bona, Tom Fontana and Warren Beatty -- did not challenge the constitutionality of the FCC's underlying indecency-enforcement authority as did the networks.

The FCC's power to sanction fleeting profanities and nudity are both in regulatory limbo. The Third Circuit Court of Appeals followed the Second Circuit's lead in smacking down the Janet Jackson fine as arbitrary, capricious and insufficiently justified.

ABC is also challenging an indecency fine against NYPD Blue in the same court that struck down the profanity decision.

Fox had yet to file its brief at press time.