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Fox to FCC: 'American Dad' Inquiry is Unconstitutional

Company says $25,000 indecency fine exceeds Bureau's authority 7/06/2010 04:43:18 PM Eastern

EXCLUSIVE: Fox
has a message for the FCC: We're sick and tired of your indecency enforcement
regime and we shouldn't have to take it anymore.

That
was the gist of the company's response to the FCC Tuesday opposing the
commission's $25,000 fine on Fox TV stations over an indecency inquiry into American Dad. "The NAL [Notice
of Proposed Liability] is unconstitutional, violates established Commission
policy, and exceeds the Bureau's delegated authority," Fox said.

Last
month, the FCC said it planned to fine the Fox stations for not providing it
with all the information it asked for in its inquiry into a Jan. 3 episode of American Dad
. The
fine is not for airing the show (and its suggestion of pleasuring a horse), but
against the group for not supplying a list of all the stations that aired the
show and other information the FCC asked for.

Saying
it was a "courtesy" to Fox, the FCC had supplied it with a copy of a
complaint against Fox's KDFW (TV) Dallas, but with the request for information
on all of the stations that might have aired the show and for the content
rating information for Dallas. Fox instead responded with information
about KDFW's airing only. Fox argued that the FCC needed to first produce
the complaints from those other markets and that the information requests for
group information on airings or parental guidelines was beyond the FCC's
authority. The FCC disagreed, and said in its notice proposing the fine that
"parties must comply with Bureau orders even if they believe them to be
outside the Commission's authority."

Fox
sees it differently. "The Commission's investigatory authority, routinely
used in cases that do not implicate free speech rights, cannot exceed the
constitutional limitations imposed by the First," it argues. "The
Bureau's expansive inquiry, unmoored from specific complaints against
particular stations, clearly breaks from the First Amendment and Commission
policy, and the Bureau's attempt to penalize Fox for its alleged failure to
comply with the underlying LOI (letter of inquiry seeking information
about a complaint) both exceeds the Bureau's delegated authority and magnifies
the constitutional defects inherent in the current approach to indecency
investigations."

Fox
also says that the follow-up letters of inquiry the commission sent to all Fox
owned and affiliated stations simply attached copies of the KDFW complaint
and did not include bona fide complaints from those individual markets. Since
the FCC fines individual stations, not networks, it needs complaints from
individual markets in order to act.

Fox
argues that the years some investigations remain open results in chilling of
speech. More than a million complaints remain in the pipeline, in part because
of the legal limbo the FCC's enforcement regime found itself in after challenges
from Fox and CBS over that regime.

It
also talks about the hundreds of license renewals the FCC has held
up--including at least four of its own stations, says Fox--pending resolution
of indecency complaints, or the tolling agreements it has required sellers,
including Fox, to sign to complete deals. Those have been to either extend the
statute of limitations on FCC indecency inquiries or waive them altogether,
which Fox says simply perpetuates the chill on speech.

Fox
suggests that the FCC should quit while it is behind. "To avoid any
further constitutional violations flowing from the Bureau's investigatory
practices that exceed its delegated (and constitutional) authority, the
Fox NAL must be cancelled."

September
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