CBS: It May Be Time to Rethink Pacifica

CBS files brief with Second Circuit Court of Appeals asking it to overturn FCC’s indecency finding against ABC's NYPD Blue .

Saying that the Federal Communications Commission was trying to play program director and chief editor for TV stations and doing a bad job of it at that, CBS told the Second Circuit Court of Appeals in New York that the commission’s indecency finding against ABC's NYPD Blue should be thrown out.

ABC and its affiliates are in court fighting a $1 million-plus indecency fine against a 2003 airing of the show. CBS filed its brief separately but joined Fox and NBC in backing ABC's decision to air bare buttocks -- in this instance, actress Charlotte Ross' -- in a "nonsexual and nonexcretory context" in an award-winning series.

CBS pointed out that the bare behind came in a scene that was "an integral part of the program's serious story line, was preceded by parental warnings and appropriate ratings, was aired in the final hour of primetime at 10 p.m. Eastern and generated no complaints from the public other than cookie-cutter submissions from nonviewers of the show orchestrated by activist groups."

CBS knows a little about those orchestrated campaigns. It is currently fighting the Janet Jackson indecency fine in federal court and has asked the FCC to reverse its multimillion-dollar proposed fine for drama Without a Trace, with no decision yet on either.

CBS told the court that the FCC has abandoned its "restrained" enforcement policy for one that is "standardless, absurd and has a chilling effect on the broadcast industry."

The network said the court need not "disturb" the Pacifica ruling, which established broadcasting's unique pervasiveness as a justification for regulation, to find that the FCC's interpretation of that ruling was unconstitutionally vague and insufficiently justified as applied in this case.

But it also said the court might want to take up the larger question of whether that "uniquely pervasive" standard fits anymore. "A broader constitutional ruling may be appropriate," CBS added.

The network pointed out that the Second Circuit itself, in finding the FCC's fleeting profanity ruling against Fox "arbitrary and capricious," had said that it found it "increasingly difficult" to describe broadcasting as "uniquely pervasive and uniquely accessible to children." The court also cited technological advances that "may obviate the constitutional legitimacy of the FCC's robust oversight."

While that was strong First Amendment language from the court, it also came in dicta, which is essentially nonprecedential editorializing by the court.