Fox Asks FCC to Reconsider Indecency Petition Rejection

Network, Affiliates Fighting Fine for April 7, 2003, Airing of Married by America

By John Eggerton -- Broadcasting & Cable, 4/22/2008 5:24:00 PM

Fox asked the Federal Communications Commission's Enforcement Bureau to rethink its decision not to consider Fox's challenge to indecency fines against 13 stations for an April 7, 2003, airing of Married by America that showed some pixilated body parts of bachelor-party revelers.

Fox said the petition rejection was an abuse of its discretion and a ploy to avoid the substance of the petition.

The bureau rejected the petition without considering the merits because the petition violated the 25-page limit and Fox had not sought a waiver of that limit at least 10 days before filing, as FCC rules require.

In an 18-page filing Monday, Fox said the bureau's rejection on what amounted to a technicality was illogical; contrary to agency efficiency, which the page limit was meant to promote; an abuse of discretion; and an arbitrary and capricious ploy to "avoid examination of the serious constitutional and factual arguments raised in the petition."

Fox pointed out that the seven parties to the petition -- Fox and the owners of the fined affiliates -- could have filed seven separate petitions totaling 175 pages, but instead, to cut down on paperwork, filed jointly, exceeding the limit by only 12 pages.

They even asked for a waiver of the page limit, but the FCC said they needed to do so 10 days before they did.

"Fox and the affiliates had a statutory right to a decision on the merits of their reconsideration requests, and the commission has presented no legitimate rationale for refusing to review the substance of the petition,” Fox said.

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.

Fox refused to pay and challenged the fine.