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Court Delays Start of Profanity Challenge - Broadcasting & Cable

Court Delays Start of Profanity Challenge

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The U.S. Court of Appeals for the Second Circuit in New York will delay the briefing schedule for the broadcaster challenge of four FCC profanity rulings until after the court rules on an FCC request to take another look at those decisions before the case begins.

The first round of briefs in the case were due Wednesday, July 12,  but sources familiar with the situation says the clerk of the court has informed attorneys that briefs will not be due Wednesday.

One source says the clerk also told them a decision is forthcoming, though not likely by Tuesday night, and that the briefing schedule will be deferred until the court rules on the FCC's request, backed by some broadcasters, and several other motions to reject that request.

The FCC has also asked the court to reject CBS' motion, saying it contained information on pre-argument talks, which violated confidentiality agreements. The FCC also said it was bound by those agreements and could not respond to reports in the media of the CBS filing, including by B&C. CBS says it will revise the filing to remove those parts.

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 reg radar.

But the FCC also did not give the stations a chance to appeal those "decisions without penalty," saying it was an attempt to give stations guidance for the future. The stations and networks filed suit against the rulings anyway and 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 requisition 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 before the case starts.

Broadcast sources suggest that the affiliates who support Martin are looking to give a hand to a chairman who wants to loosen ownership restrictions and give them multicast must-carry.

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