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Peacock Pecks At Indecency Reg Underpinnings

NBC has taken aim at the FCC's indecency enforcement regime and powers, arguing that the combination of the V-chip and ratings system is a more narrowly tailored means of giving parents control over content than the FCC's current daytime ban.

When NBC broke with its years-long policy of not using the TV ratings descriptors, it was viewed as a major step toward a challenge of FCC indecency enforcement regulation, with the networks able to make th argument that since they were all using the ratings system and all new TV's had to have a v-chip, the FCC's policy was too broad.

In the Playboy case several years ago, the Supreme Court ruled that an effective program-blocking mechanism was the least restrictive means to protect kids from cable content.

NBC also argues that FCC exceeded its authority by extending its profanity rules to cover fleeting expletives, or even non-fleeting ones that do not have a religious component--i.e. blasphemy.

That was one of several arguments the network made in an extensive brief to the Second Circuit Court of Appeals in New York. That court is hearing a challenge by the networks--except ABC--to the FCC's four profanity rulings of last March.

NBC took a broad swipe at the underpinnings of the FCC's entire indecency enforcement regime while it was at it, saying that the Pacifica decision's foundation in the "special" nature of broadcasting had been eroded and that it is "far more restrictive than necessary" to protect children from content their parents don't want them to see or hear.

Any speech restrictions must be the most narrowly tailored means to a compelling government interest.

No NBC show was the subject of a profanity ruling, but the FCC's decision to crack down on profanity is rooted in its decision that NBC's broadcast of Bono's "fucking brilliant" on the Golden Globes several years back was indecent.

The FCC initially concluded it wasn't but was urged to rethink that by legislators.

As did Fox and CBS in their filings, NBC argued that the FCC's decision was arbitrary and capricious, saying the commission's "regulatory somersaults and malleable standards have left broadcasters completely unable to predict whether the Commission will find a particular broadcast indecent or profane, rendering the Commission's enforcement efforts void for vagueness."