ABC Zags, Backs Affils On Profanity

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The ABC network is supporting FCC Chairman Kevin Martin's request to take a second look at profanity decisions, diverging from the course of Fox, NBC and CBS, who plan to oppose it.

ABC Thursday filed a court motion backing the FCC's request to review four "fleeting profanity" indecency findings from its March omnibus order--there were no fines imposed--that the networks and affiliates immediately took to court. The FCC says it will also hear arguments from the cited stations for why the broadcasts were not indecent.

ABC says it will back the FCC move so long as the court retains jurisdiction over the case and will expedite it once the FCC has made its decision on review. The FCC could do anything from decide to propose fines, to reverse one or all of the decisions, to simply strengthen its argument.

The FCC has asked the U.S. Appeals Court for the Second Circuit (in New York) to delay oral arguments in the case--scheduled to begin no earlier than September--while it takes another look at the decisions, promising to conclude that review in 60 days.

Why New York? According to a source familiar with the thinking, the case law there is more remand-friendly, while the D.C. Circuit has denied FCC remand requests before. 

The FCC, the ABC, CBS, and NBC affiliate associations, Hearst-Argyle, and the ABC network are calling for the remand, while Fox, its affiliates, NBC, and CBS are on the other side. The other networks would have supported the remand, say several broadcast sources, if the commission had agreed to stay enforcement of the new tougher indecency policy while it was reviewing the decisions.

The four findings were against ABC's NYPD Blue (the BS-word), two Fox Billboard Music Award Broadcasts (f-words and s-words) and the Early Show (a BS variant). The Early Show is particularly troublesome since it is a news program, which has historically gotten more leeway for the "heat of battle" type of language or video.

ABC was joined in its motion by station licensees WLS Television and KTRK Television in the request, two affiliates in the Central Time Zone, where NYPD Blue airs a 9 p.m. and outside of the 10 p.m.-6 a.m. indecency safe harbor.

ABC affiate KMBC Kansas City was the only ABC affiliate named in the Blue profanity finding, it is already a party to the FCC remand. But the FCC order talked of other, unnamed, ABC affiliates, so WLS and KTRK are standing in for those.

The motives for the splits appear to be mixed. A desire for a speedy hearing by the networks after two years of profanity limbo following the Bono Golden Globes f-word decision, stations' desire to help out Martin, who is going to bat for them on ownership deregulation and multicast must-carry, and the FCC's desire to either correct a procedural defect or buttress its case.

The "defect" was that the FCC released the four profanity findings without fine or black spot on their records in an effort to give broadcasters the clarity on its tougher policy on content. But it also bypassed the normal appeals process, essentially denying those stations their defense of the rulings.
Stations are also concerned that, though this FCC says it will not hold the findings against them at renewal time, a future FCC might change its mind.

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