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Indecency Court Challenges Begin

Networks fire opening shot at FCC profanity rulings 11/24/2006 07:00:00 PM Eastern

The broadcast networks, with the exception of ABC,
are taking aim at the FCC's stepped-up
indecency/profanity-enforcement regime, beginning the court battle that could
wind up with the Supreme Court getting another crack at the commission's
code.

The ammunition was a series of opening briefs in networks' court
challenges to four profanity rulings the FCC issued last March, though it has
since rescinded those against CBS and ABC
while upholding two against Fox's Billboard Music Awards.

ABC sat this one out, since its NYPD
Blue
profanity finding was reversed on procedural
grounds. CBS, which also filed its opening brief in its court challenge to the
Janet Jackson fine, decided to stay in the
fight even though the FCC reversed its ruling that a profanity on the
The Early Show was
actionable, saying the commission should have accepted the network's defense
that the program was a public-affairs show.

CBS' move was not simply a show of support for Fox. The FCC's decision
to reverse the two profanity rulings has been appealed by the
Parents Television Council, so until it
becomes final, CBS is taking no chances.

Neither is ABC, for that matter. Although it did not file a brief and
will not participate in oral arguments, it reserved the right to jump back in
if the FCC alters its decision again. Oral arguments could come as early as
late December, though that would be warp speed for federal appeals courts.

With an assist from Hollywood and NBC, Fox and CBS
told the U.S. Court of Appeals for the Second Circuit in New York that the
FCC's decision to start cracking down on profanity was illegal,
unconstitutional, arbitrary, capricious, chilling and just about every other
printable name in the book.

NBC, in a lengthy brief filed Friday, took direct aim at indecency
enforcement. Its argument could help set the stage for a broader challenge to
the FCC's crackdown on content.

Curse like sailors

For its part, the FCC continued to paint networks and programmers as
hedonists who curse like sailors.

"By continuing to argue that it is okay to say the f-word and the s-word
on television whenever it wants," the FCC said in response to the flood of
court filings, "Hollywood is demonstrating once again how out of touch it is
with the American people. We believe there should be some limits on what can be
shown on television when children are likely to be watching."

So do the networks, actually. CBS in its filing took pains to point out
that it was simply calling for a return to the kinder, gentler days of
indecency enforcement, when an occasional slip of the tongue didn't cause a
national crisis. "Contrary to the recent statements by the FCC suggesting we
are seeking the right to use expletives at will in our programming," said CBS,
"all [we are] seeking is a return to the FCC's previous time-honored practice
of more-measured indecency enforcement."

Fox went for the jugular, calling into question the entire
indecency-enforcement regime and saying any ban on indecent speech is
unconstitutional.

NBC, in its broad swipe at indecency enforcement in general, said that
the FCC's basic assumptions about how it can regulate broadcast content have
been eroded. It also argued that the commission had redefined "profane" from
its original meaning of "blasphemy." It can't do that, the network argued, if
Congressional intent is clear.

The FCC will have to give its side of the story by Dec. 6.

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