The Center For Creative Voices (CCV) is advising a federal appeals court that the center opposes the FCC taking another look at disputed profanity calls, including one against Steven Bochco's NYPD Blue.
The Center, whose board of advisors includes Steven Bochco and Warren Beatty, had initially said it would not oppose a move by the FCC to give stations the opportunity to weigh in on four profanity findings the commission made as part of a package of indecency/profanity findings released March 15. Broadcasters have challenged those four in the U.S. Court of Appeals for the Second Circuit, which has delayed the start of the case while it considers the FCC request
CCV had not opposed the motion, but said it was swayed by a supplemental motion filed by CBS and Fox, who oppose the FCC move. In that motion, the networks pointed out that the FCC had sought an expedited court hearing of CBS' challenge to the Janet Jackson fine, while at the same time pushing for a review of its profanity decisions, which would delay the broadcaster challenge to those by at least a couple of months.
CCV, in a filing Thursday with the court, said that whatever value there had been to the FCC's request to review its decisions--which included possibly changing some and, at the least, giving stations a chance to defend themselves--"they are now being used as a part of a blatantly transparent tactical scheme to delay this case while expediting another proceeding in the Third Circuit [the Janet Jackson challenge].
"They were playing four corners in the second circuit," said Center President Jonathan Rintels, "and run and shoot in the third circuit, and that just didn't work for us," said Rintels.
Oral argument on the FCC's request for the rules to be remanded back to it for further study are scheduled for Aug. 29, so the case will already be delayed into September even if the FCC remand request is denied.
The FCC issued the four profanity rulings against several Fox, CBS and ABC stations for f-word and s-word variations, but did not issue fines or black marks since the broadcasts predated its crackdown on fleeting profanity, which traditionally had flown under the indecency radar.
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 finding 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.
The FCC also did not give the stations a chance to appeal those "decisions without penalty," saying it had been an attempt to give stations guidance for the future. The stations and networks instead filed suit against the rulings. Now, the FCC says not having an appeal process was a "procedural defect" and it wants to take another 60 days to review the decisions and to give stations a chance to weigh in on them.
All the affiliate associations except Fox's, joined by the ABC Network, are supporting the FCC request for a remand, while Fox, CBS, NBC and the Fox affiliates are opposing it. The networks and affiliates are united in challenging the rulings, but have split over the issue of letting the case proceed speedily or give the FCC another crack at the decisions.
It could conceivably use the opportunity to shore up its case in court, but commission staffers have indicated--no official comments--it's purpose was to give the stations the chance to air their side, and make that part of the legal record, before the case starts.
"We think that the FCC did put its best legal foot forward in the March decisions, " Rintels told B&C, "and having had them punched holes in, want to shore up a leaky boat. They don't like trying to uphold their interpretation of indecency rules on those various fact patterns. So they want another bite at the apple. This is impacting the networks and creative people on a daily basis, and we just don't think it is fair to continually delay judicial resolution."