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Walking the Line

The TV networks and stations agree that the FCC's indecency enforcement is arbitrary, capricious and just plain wrong. But the differences in what they want a federal court to do highlight their different agendas.

While the ABC stations, facing more than $1 million in fines, have told the Second Circuit Court of Appeals that the FCC is unconstitutionally misapplying its indecency enforcement powers, they are not challenging that power. By contrast, Fox and NBC, and to a lesser degree, CBS, say the FCC should not be allowed to ban indecent content.

The ABC stations' reluctance to open up the constitutional question was clear in the filing from the ABC Television Affiliates Association. The stations went out of their way to tell the court they were not looking to strip the FCC's authority to regulate indecent broadcast content, which is based on a pair of decades-old Supreme Court rulings.

One was the 1978 FCC v. Pacifica case involving the late George Carlin's so-called “Seven Dirty Words” routine. The court upheld the FCC's indecency enforcement powers on the grounds that broadcasting was “uniquely pervasive.” The second was Red Lion Broadcasting v. FCC in 1969, which centered on the now-defunct Fairness Doctrine and established that “spectrum scarcity” was a justification for content-based regulation.

One theory behind that seeming eagerness to remain under the FCC's indecency enforcement regime is that gaining those rights might mean having to pay for spectrum, which broadcasters are loath to do. John Crigler of law firm Garvey Schubert Barer, who has argued high-profile indecency cases, doesn't think that is it. “What is going to make Congress squeeze money out of broadcasters isn't going to be granting them First Amendment freedom,” he says.

Another attorney, who asked not to be identified, isn't so sure, but thinks it may be another form of economic protectionism. “I think the real reason is the national ownership cap,” he says. That's because without spectrum scarcity as a rationale for content regulation, that newfound “freedom” might spill over to how many stations the networks can own. “[The affiliates] feel if Red Lion were gone, the networks would have a stronger case against national ownership caps,” he says, an issue that has divided networks and stations before.

ABC, which owns two of the stations fined, told the court it did not have to overturn Pacifica or Red Lion to determine that the FCC's finding was unconstitutional as applied—or, ABC would argue, misapplied—in the case of NYPD Blue. But ABC did not concede its stations' special status. In fact, it argued that the court should start using the same strict standard for reviewing broadcast speech regulations that it does for other media.

The Parents Television Council takes issue with the ABC affiliates' defense of the show. “They argue that they are not opposed to indecency rules,” said the PTC in a statement, “yet they don't want the rules to be enforced. That's akin to saying that they're in favor of the speed limit but against any enforcement when people drive too fast.”


Fox and NBC, which have no dog in this fight but bones to pick with the FCC over profanity, took dead aim at the FCC's indecency powers. CBS, which like the other two filed in support of the ABC stations, also questioned indecency enforcement. Part of the reason they can hit the court harder than either ABC or its stations is that they are intervenors, not parties to the suit, meaning they can go beyond trying to win the case and raise constitutional questions the networks want the Supreme Court to consider, if the case eventually gets there.

While CBS said the court did not have to overturn Pacifica to find the FCC's enforcement “as applied” was unconstitutional, a point all petitioners made, it did say a “broader constitutional ruling” may be appropriate. CBS pointed out that the Second Circuit, in remanding the FCC's profanity finding against Fox, said it was getting “increasingly difficult” to describe broadcasting as uniquely pervasive or uniquely accessible to children.

CBS's position was less forceful than ABC's on strict scrutiny, though, saying that “at some point in the future” such scrutiny may apply. “[B]roadcast television today does not differ from other media in any way relevant to the constitutionality of indecency regulation,” ABC said.

The FCC will get the opportunity to respond to the networks and stations; then broadcasters can respond to that response. If the Supreme Court hears the case, it won't be until the fall, and likely won't rule until 2009.