DOJ, FCC Drop Pursuit of Fox 'Married by America' Indecency Fine

FCC chair says commission will focus on egregious indecency violations

By John Eggerton -- Broadcasting & Cable, 9/21/2012 5:09:25 PM

The FCC and Justice have dropped their pursuit of Fox over nonpayment of 2003 indecency fine for Fox's Married by America, DOJ said in a notice of voluntary dismissal filed with the D.C. District court.

"In the wake of the Supreme Court's decision in Fox v. FCC, the Commission is reviewing its indecency enforcement policy to ensure the agency carries out Congress's directive in a manner consistent with vital First Amendment principles," said FCC chairman Julius Genachowski in a statement obtained by B&C. "In the interim, I have directed the Enforcement Bureau to focus its resources on the strongest cases that involve egregious indecency violations.  We also will continue to reduce the backlog of pending indecency complaints."

The Supreme Court in June vacated a Second Circuit decision that the FCC's indecency enforcement regime as applied to swearing and nudity on Fox and ABC TV stations was unconstitutional, but concluded that the FCC did not give broadcasters sufficient notice although Chief Justice John Roberts suggested the FCC has now served notice and can enforce its policy.

The FCC has some 1.5 million indecency complaints in the hopper, some of which are holding up license renewals.

"Fox's view has consistently been that the FCC's fine had no foundation within the law, and we are grateful that the DOJ and FCC have now dropped the case," Fox said in a statement.

The company said it would also ask the FCC to dismiss the underlying forfeiture order. That would allow the non-Fox-owned affiliates who paid the fine upfront to get their money back, a dismissal Fox said "will ensure that the Fox affiliates who paid the fine upfront do not unfairly suffer any negative consequences related to their broadcast licenses in the future."

Fox signaled back in 2008 it would not pay the fine imposed on five of its owned stations in the forfeiture order issued Feb. 21, 2008, for the April 7, 2003, airing of the program Married by America.

A handful of Fox-owned and Fox-affiliated stations (13) had been hit with fines totaling $91,000 -- $7,000 apiece -- for the program, which featured pixilated nudity.

The fine was initially $1.18 million against 169 stations, but the FCC wound up only fining the handful of stations where complaints had actually been filed in that market per a new policy, calling it part of its "appropriately restrained enforcement policy."