FCC Kicks Back Fox's Married by America Appeal

Federal Communications Commission Won't Take Action of Fox's Request for Reconsideration of $91,000 Indecency Fine

By John Eggerton -- Broadcasting & Cable, 4/4/2008 4:48:00 PM

Citing a procedural violation, the Federal Communications Commission decided not to take action on Fox's request that it reconsider the $91,000 indecency fine it levied against 13 Fox-owned or -affiliated stations for an April 7, 2003, airing of Married by America.

The FCC's reason: Fox did not file a request to exceed the page limit of the petition at least 10 days before the filing -- reasoning that had some Fox folks shaking their heads.

"The commission dismissed the petition for reconsideration submitted by Fox and its affiliates in the Married by America case for failing to ask for permission in advance of filing to exceed the page limit for such petitions," Fox senior vice president of corporate communications Scott Grogin said. "Given that the petition was filed on behalf of seven companies -- each of which had the right to file 25 pages -- we fail to see how filing 39 pages instead of the 175 allowable pages was grounds for dismissal. It is particularly offensive for the commission to have used such specious grounds to dismiss a petition that raises such important constitutional issues."

The confusion may also be because in an earlier filing on the same complaint, a network source said, Fox also exceeded the page limit and also did not provide 10 days' notice -- the FCC neither rejected that filing nor made mention of the fine-print snafu. "That is referring to a summary rather than a pleading," said an FCC source. "Neither of those conditions apply to a summary."

According to sources, the FCC has until Monday, April 7, to file suit in federal court to collect the fines, which nine of the stations and all of the Fox-owned stations refused to pay. The five-year statute of limitations on pursuing the stations expires Monday.

"We have an obligation to protect our children by enforcing laws restricting indecent content on TV and radio, said an FCC spokesperson. "For four years, News Corp. has failed to take responsibility for airing indecent programming during Married By America. It is long past time for the compeny to accept responsibility and pay its fines."

The Department of Justice Friday confirmed that it filed suits against eight stations in four districts. Five stations are in the District of Columbia and one each in the southern district of Iowa, the southern district of West Virginia and the middle district of Tennessee. The Yakima, Wash., affiliate was dropped from the collection action, according to a source, because the FCC "did not receive a complaint relevant to the Yakima station."

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." The 13 were reduced to nine when four of the stations, none of them Fox-owned, paid up.

The FCC's crackdown on profanity was smacked down by a Federal Appeals Court, which found that the commission had not justified a profanity ruling against Fox broadcasts of swearing by Cher and Nicole Ritchie. The Supreme Court's decision to hear an FCC appeal of that decision means that the commission's enforcement power over cussing will remain an open question until next fall at the earliest.

The FCC issued the forfeiture order Feb. 22 and gave Fox stations 30 days to pay up.

The suits will allow Fox to make its case against the fines in court, which essentially starts with a clean slate in considering the issue, according to one veteran attorney.