Fox: 'Married' Not Indecent

The 169 stations carrying the Fox Television Network are expected to challenge the federal government's indecency crackdown by refusing to pay the proposed $1.18 million FCC fine for a raunchy Married by America episode featuring strippers and whipped cream.

By repudiating what would be the largest indecency levy against a TV program, the stations—fined $7,000 each—are essentially daring the government to haul them into court. Under federal law, stations are under no legal obligation to pay FCC indecency fines unless the Justice Department takes them to court and wins a judge's order.

The dare to Washington comes as industry and free-speech activists are putting together a coalition to combat legislation on Capitol Hill that would hike maximum indecency fines from $32,500 to $500,000. The bill has been passed by the House and is awaiting a Senate vote.

At deadline, the American Civil Liberties Union was drafting an appeal to media companies and activists to mount a unified front against the legislation. As the opposition to tougher restrictions on broadcasters mounted, lawmakers and regulators last week further backed off threats to bring cable under the FCC's indecency rules.

Speaking at the National Cable and Telecommunications Association Show in San Francisco, House Judiciary Committee Chairman James Sensenbrenner (R-Wis.) said he opposes extending indecency prohibitions to cable, which provides easy-to-use channel-blocking capabilities. Cable “is doing what needs to be done in giving parents the tools they need to make sure that kids are not seeing inappropriate stuff,” he said. Some members of the Senate Judiciary Committee have lobbied for restrictions on pay TV in indecency regulation that makes it to the Senate floor. If a cable provision passes the Senate, Sensenbrenner promised to “educate” House members to dissuade them from following the Senate's lead.

New FCC Chairman Kevin Martin also favors self-regulation of cable rather than additional restrictions. “The cable industry,” he said at NCTA, “has an opportunity to voluntarily step up.”

Under FCC rules, broadcasters are prohibited from airing indecent programming between 6 a.m. and 10 p.m., when children are most likely to be watching. To be considered indecent, a program must depict genitals or sexual and excretory activities in a “patently offensive” manner.

If Fox stations refused to pay a fine for Married by America, they would be exercising a legal strategy communications lawyers often threaten but rarely use. Lawyers say Justice is unlikely to sue any station that fails to pay the standard fine. Despite the easy escape, however, nearly all stations pay up because they don't want to annoy the FCC, which controls license renewals, cable-carriage disputes and other regulatory actions critical to a station's survival.

But after a year of one record-breaking fine after another, broadcasters are eager to fight the FCC over indecency. Besides, lawyers for Fox Television's 35 stations and the network's 134 affiliates are gambling that the FCC's legal case is so weak that even the lure of preserving the biggest indecency fine in history won't pull Justice into court.

“My advice is to not pay,” says Joseph Di Scipio, an attorney for Cohn and Marks who represents Fox affiliates. “I don't think the government has a good case at all.”

Other Washington sources following the case predict Fox O&Os also will refuse to pay, although lawyers for the TV group and officials for News Corp., parent company of Fox, would not comment.

“The Married by America fine could be reversed just on factual grounds,” says John Crigler, a First Amendment lawyer for Washington firm Garvey Schubert Barer. “There's a lot of argument about whether the episode meets the FCC's indecency standard.”

In their appeal to the FCC, Fox lawyers insisted the episode didn't come close to violating the FCC's indecency standard. Nudity was obscured or pixellated, and the show didn't dwell on any potentially offensive scene, they said.

Di Scipio predicts the FCC will back off its proposed fine against the 134 Fox affiliates, but only because they couldn't know the content of the episode ahead of time. The fine against the network O&Os will likely be upheld.

Married by America was a reality program that allowed viewers to pick, from a group of singles, the pair most likely to form a successful marriage. The scenes in question were not intended to shock or pander to the audience, Fox says, but were integral parts of the contest storyline.

The contestants were shown at bachelor and bachelorette parties, where whipped cream was licked off a stripper's naked body and a male stripper put a woman's hand down his pants. The wild parties were relevant to the storyline, because the two contestants most discomforted by them were ultimately picked as the winning couple.

The Married by America episode, if defended successfully, could result in the FCC stance on indecency's being declared unconstitutional. But if the Justice Department declines to sue Fox stations, the industry's main avenues of attack would lie with NBC's appeal of an FCC finding against the 2003 Golden Globes, in which rock star Bono blurted out the “f-word,” or Viacom's appeal of the $550,000 fine proposed against CBS-owned stations for Janet Jackson's 2004 Super Bowl breast flash.

No decision is expected until Martin picks a new Enforcement Bureau chief, probably next month.