CBS is strongly opposed to letting the FCC take another look at four "fleeting profanity" rulings, including against CBS's morning news Early Show.
While ABC and three of the four affiliate associations support the FCC's request of the New York federal appeals court hearing their appeal of those rulings, CBS says the FCC has had plenty of time to get its act together on profanity and that the FCC's request to delay the court case is unnecessary.
"Granting the remand and stay request would disrupt the parties' efforts to work with Second Circuit staff and counsel to establish the earliest possible briefing schedule and arguments date," said CBS in its filing to the court.
CBS points out that it would not have opposed the FCC request for another look at the rules if the commission had agreed to suspend its tougher policy on "fleeting profanities, "which were not held to be indecent until recently--the rulings were part of the FCC's omnibus March indecency order. The FCC "categorically refused" to stay the rules, said CBS.
CBS argues that that puts it in a "particularly perilous" situation during the remand period--the FCC has asked for 60 days--"if, for example, a U.S. solider were to utter a profanity during news coverage of the War in Iraq...CBS stations would be potentially liable for tens of millinos of dollars in fines and their licenses would be at risk," says CBS, pointing to the new law that boosts the top indecency fine from $32,500 to $325,000.
The FCC said it is looking to remedy a procedural mistake it made in issuing the four profanity findings. It did not impose fines, since the broadcasts occured before it had announced its intention to find "fleeting profanities" indecent, a break with past precedent. It also says it did not plan to hold the findings against the stations at renewal time.
But becuase it did not issue a notice of apparent liability, stations did not have an opportunity to respond. The FCC now says it wants to give them that opportunity, and delay the court challenge by the networks and stations for at least a couple of months.
CBS says it is not disputing the facts of the Early Show broadcast--a "bullshitter" slipped in--nor taking issue with the procedure. Leaving only the facts at issue, essentially the same ones that have been at issue since CBS and others raised them two years ago in calling for reconsideration of the indecency finding against Bono's f-word on NBC's Golden Globes, the decision that upped the ante on cussing.
CBS points out that, while the FCC relied on its Golden Globes decision that an f-word adjective was indecent as precedent in the four profanity findings at issue, it has yet to rule on the challenges to that initial decision.
CBS says the FCC's silence on those petitions, combined with its refusal to stay enforcement during the remand, combined with its boosted fine powers, is a recipe for chilling speech while the commission attempts to evade court review.
The FCC has indicated it is simply trying to give stations the chance to challenge the rulings they were denied by the "procedural flaw." Some lawyers for the other side argue it is instead trying to buttress its case before it has to go into court.