Fox TV Asks Court to Throw Out FCC's Indecency Policy
By Christopher Stern
Dec. 20 (Bloomberg) -- Fox Television Stations, Inc. asked an appeals court to throw out the U.S. Federal Communications Commission's broadcast indecency policy, saying it violates broadcasters' right to free speech.
Fox, a unit of New York based News Corp., argued that the FCC has revised its 30-year-old indecency policy in ways that exceed the agency's authority to regulate content on television.
The case is being heard by a three-judge panel that sits on the 2nd Circuit U.S. Court of Appeals in New York. The focus of the case is two Billboard Music Awards shows that aired live in 2002 and 2003. In the 2002 show, Cher used the F-word. The next year, Nicole Richie used variations of both the F-word and the S- word during the same program.
Fox argues the FCC hasn't historically punished broadcasters for unintentional airing of expletives during live broadcasts.
``Speech that is indecent must be more than a single use that is offensive,'' argued Fox attorney Carter Phillips of the law firm Sidley Austin Brown & Wood LLP.
While broadcasters and the FCC have been fighting over indecency issues for decades, the stakes increased this year when Congress authorized a 10-fold increase in fines to as much as $325,000 for each TV station that airs indecent material.
Fox said the FCC was making a ``radical reinterpretation'' of the broadcast indecency policy because the agency holds broadcasters liable for isolated, even accidental, uses of four- letter words during times when children are most likely in the audience.
The FCC didn't fine Fox, saying it issued the ruling to provide guidance for the future.
``The fact that an utterance is isolated won't immunize it against indecency regulation,'' FCC attorney Eric Miller told the court today.
In a filing with the court before today's hearing, the FCC wrote that its rules ``simply do not permit entertainers gratuitously to utter the F-word and the S-Word in awards shows broadcast on national television at a time when substantial numbers of children are certain to be in the viewing audience.''
During the hearing, the judges questioned FCC attorney Miller closely about the agency's decision to retract a finding that the use of a single expletive on CBS Corp.'s ``The Early Show'' was not liable under indecency rules because the word aired during a news interview.
Rosemary S. Pooler, one of the three judges hearing the case, noted that the interview in question involved a contestant on a reality TV show. ``And you call that news?'' Pooler said. ``What wouldn't be news?''
Miller said Fox never claimed the ``Billboard Music Awards'' was a news program and therefore isn't an issue in this good.
``Are you telling the networks to make some cockamamie claim and they will survive?'' Pooler asked.
Miller's statement provided some relief to C-SPAN, the cable public affairs network which aired the hearing live over WCSP-FM, its Washington radio station. At least 10 four-letter words or variations of four-letter words were used by lawyers and judges during the hearing.
``It's good news to have the FCC state in open court that C-SPAN's coverage of this event is not subject to liability,'' said C-Span General Counsel Bruce D. Collins, who attended the hearing.
Attorney argues FCC rules on profanity unfair
The Federal Communications Commission took exception to Cher's language at the Billboard Music Awards, broadcast on Fox.
by Jeffrey Toobin
CNN Senior Legal Analyst
The Federal Communications Commission found that remarks by the two celebrities at the 2002 and 2003 Billboard Music Awards violated federal decency standards. Fox Television, which broadcast the shows, is appealing the judgment, which did not include fines.
Carter Phillips, a Washington attorney for Fox, repeatedly quoted the disputed language in open court, including Cher's remark that "people have been telling me I'm on the way out every year, right? So f--- 'em," and Richie's statement, "Have you ever tried to get cow s--- out of a Prada purse? It's not so f---ing easy."
Phillips told the three-judge panel that the FCC had approved the use of those precise words in a broadcast of the film "Saving Private Ryan," a distinction that left broadcasters in the unfair position of guessing when the words were appropriate and when they were not.
In an unusual move for a federal court, the judges allowed C-Span cameras to broadcast the hearing, which led Judge Peter W. Hall to ask Eric D. Miller, the lawyer for the government, whether a news broadcast on the case would draw FCC scrutiny.
Miller said no, because a news broadcast would not be intended "to pander or titillate."
A decision is expected by spring.