Viacom, Fox, and other major broadcast groups will link with various activist organizations in a last-ditch effort to petition the FCC to rescind the Bono indecency decision. NBC, whose broadcast of his expletive ("f***ing brilliant") on the 2003 Golden Globes telecast prompted the FCC decision, had not joined the fight at press time but is expected to file a separate brief. ABC is not joining the fight.
A handful of midsize broadcast groups, People for the American Way, and the Media Access Project are also joining arms. Even a few performers, including edgy illusionists Penn & Teller and comedian Margaret Cho, want to battle the commission.
At the same time, the FCC is about to slap Viacom's Infinity Broadcasting with a $1.5 million indecency fine for material aired by shock jock Howard Stern. Viacom is vowing to fight as it has in the past.
"The commission's harsh new policy has sent shock waves through the broadcast industry and is forcing licensees to censor speech that unquestionably is protected by the First Amendment," says noted First Amendment attorney Robert Corn-Revere in the petition. "The FCC consciously assumed the role of a national arbiter of good taste, and its decision already is exerting a chilling effect."
If the FCC doesn't back down from last month's Bono ruling, Corn-Revere warns in his petition, he'll march his clients to federal court.
Until now, protests over Washington's anti-indecency wave seemed unusually muted. But the free-speech bedfellows pushing their case to the FCC ultimately want the courts to confiscate the FCC's smut-police badges altogether. In today's always on, 500-channel, infinite Internet universe, they argue, the anti-indecency rules have long outlived their justification as a bulwark against corruption of America's youth.
Since FCC withdrawal is unlikely, given the unanimous decision, the result, and the thinly veiled aim of the petition, will probably result in a legal battle that would land every detail of Washington's anti-indecency crackdown at the Supreme Court.
Corn-Revere, of law firm Davis Wright Tremaine, believes the case is a winner.
The commission's latest decision goes way beyond that one f-word and its numerous derivations. The FCC claimed authority to fine stations for additional profanity, although it hasn't spelled out which other words are also off-limits. Guess they'll know 'em when they hear 'em.
But, after months of apologizing to Washington for Janet Jackson's Super Bowl breast-baring and other raunchy on-air fare, many of the country's biggest media companies have finally decided the feds have gone too far. In efforts to appease, some broadcasters may have chickened out, too.
The petition chronicles broadcasters' subsequent decisions to scrub their programming. That includes ER's ndecision to blur an 80-year-old woman's exposed breast in one scene, networks' implementation of five-second, or longer, delays during live shows, deletion of a hint of cleavage from a PBS documentary, and the firing of raunchy DJs. Even radio rock standards like The Who's "Who Are You?" have been edited for radio on some stations or dropped from playlists altogether.
With mocking jabs, Corn-Revere's petition takes aim at what he calls a muddle of recent FCC reversals of indecency rulings.
The Golden Globes case is a perfect example. The Parents' Television Council (PTC) kicked its fight into high gear not after the show aired in January 2003 but six months later, when the FCC staff ruled that Bono's "fleeting" indiscretion during a live show didn't warrant punishment.
The ruling might have drawn little attention if left at that; stations had been let off the hook for similar accidental or unpredictable utterances of the f-word. But the enforcement staff's opinion was so broadly written that it seemed any use of that or any other profanity would be OK as long as there was no explicit reference to sex or excretory activities.
After the PTC appealed, the full commission took over the review and reversed the enforcement staff, now declaring the f-word indecent in any context. Also, the commissioners ruled that, going forward, they would use their previously untapped authority to punish profanity.
The Bono ruling was the latest in a string of balky decisions by the FCC. In the previous two years, public ridicule led the commissioners to rescind
fines proposed by the enforcement staff against radio stations that played raunchy raps by megastar Eminem and arthouse diva Sarah Jones. FCC indecency guidelines issued in 2001 even gave the green light to "fleeting" f-words.
"No more," says the FCC.
The FCC so far considers the f-word—fuck—so bad that it won't come right out and write it in its own documents. But TV and radio stations have been put on notice: Say this word on the air, and Uncle Sam will hit you up for thousands, even millions, of bucks. Say it too often, and you can kiss your license goodbye. The word is outlawed on broadcast stations during hours kids are likely to be in the audience, or roughly the same hours it is being used in the playgrounds, ballfields, and backyards of America.