FCC Asks for Another Crack at Profanity

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The FCC and some of the TV stations cited for indecency are on the same side on at least one indecency issue.

The FCC, joined by ABC, NBC and CBS affiliate associations, has asked a New York Court to delay its scheduled hearing of a challenge to four indecency findings against fleeting expletives--like "bullshit"--that were part of the FCC’s March indecency findings.

The four had no fine attached and the FCC’s promise it would not hold them against stations at renewal time, thus the FCC considered its work done. The networks, their affiliate associations, and Hearst-Argyle TV took those decisions directly to court, since the FCC had bypassed the normal appeals process in what it said was an effort to provide guidance without adverse consequences.

The incidents in question occurred during a 2004 airing of CBS’ The Early Show, Fox’s 2002 and 2003 broadcast of The Billboard Music Awards and a 2003 episode of ABC’s NYPD Blue. NBC did not have a program involved but intervened nonetheless given the still-unresolved Bono f-word decision (an NBC Golden Globes telecast) that signaled the beginning of the tougher profanity policy.

The FCC’s initial decision in Bono was that a fleeting, adjectival f-word was not indecent, but that was later reversed by the commissioners after Congress pushed the FCC to reexamine the case.

Now, the FCC has asked the court to remand the four March profanity decisions back to it so that it can look at them again and hear the arguments that the broadcasters did not get to make. The FCC promises to make its new ruling on them within 60 days and wants the September court arguments delayed.

"Today the Commission, supported by the ABC, NBC and CBS affiliates, filed a motion for voluntary remand and stay of briefing schedule in Fox Television Stations, Inc. v. Federal Communications Commission," the commission said in a statement. "It did so at the request of broadcasters who complained they did not have the opportunity to be heard by the Commission before it issued its decision in its "Omnibus" order in March. Additionally, the remand would allow the Commission to hear all of the licensees’ arguments which is necessary for the broadcasters to make these same arguments before the Court."

In supporting the remand, the affiliate associations said they wanted the chance to defend their shows, as well as to bring up their concerns that the FCC’s finding--particularly against Early Show--could mean stations were subject to "full liability for ‘fleeting expletives’ in live news programming. "

Fox and its affiliates plan to oppose the delay. They are expected to argue that the FCC has had plenty of time to mull the arguments against finding fleeting profanities indecent given that it has been mulling the Bono decision for two years with not final resolution so far.

ABC, NBC and CBS networks were not part of the request to remand the cases back to the FCC.

The broadcasters are still on the same page in opposing the indecency/profanity crackdown, but now seem divided over whether it is better to let the court take a crack at it, or be able to make more arguments before the FCC, which could conceivably reverse itself. It could also strengthen its defense before returning the case to the court.

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