It is starting to look like rush hour on indecency-enforcement lane: The Federal Communications Commission is expected perhaps as early as Friday to try to collect an indecency fine from Fox stations for an April 7, 2003, airing of an episode of reality show Married by America.
The FCC initially proposed a $1.18 million fine, but Fox refused to pay it. There is a five-year statute of limitations on collecting the fine, and the commission just issued a similar forfeiture order to try to collect a fine from ABC stations for their airing of a naked butt on NYPD Blue, also in 2003 and also coming up against a five-year statute of limitations.
The initial $1.18 million fine will probably be reduced substantially, since there were not complaints from all of the markets where the 134 Fox affiliates were fined. The FCC rescinded the proposed fine against five of the ABC stations this week for that same reason, citing its relatively new policy to only consider complaints filed by someone in a station's community of license.
Fox has several options, although it was not commenting early Friday on which it might exercise if the forfeiture order came out. It can pay the fine and leave it at that (don't count on that option); follow ABC's lead and pay the fine, then take the FCC to court; or continue to not pay and wait for the Department of Justice to try to collect. But it would have to do so in federal district court, where Fox would be able to make its case against the fine, including, according to one source familiar with the legal precedent, challenging the constitutionality of the FCC's indecency enforcement in general.
The commission caught flak for giving ABC stations less than 30 days to respond to the NYPD Blue notice of apparent liability and only a little more than 48 hours to decide whether or not to pay the fine. That might be one reason why the commission tried to get the Fox order out ASAP. An FCC spokesperson had not returned a call at press time.
Fox refused to pay the fine when the FCC issued it and appealed the decision. In their appeal to the FCC, Fox lawyers insisted that the episode didn't come close to violating the FCC's indecency standard. Nudity was obscured or pixilated, and the show didn't dwell on any potentially offensive scene, they said.
Married by America was a reality program that allowed viewers to pick, from a group of singles, the pair most likely to form a successful marriage. The scenes in question were not intended to shock or pander to the audience, Fox said, but were integral parts of the contest story line.
The contestants were shown at bachelor and bachelorette parties, where whipped cream was licked off a stripper's naked body and a male stripper put a woman's hand down his pants. The wild parties were relevant to the story line, Fox argued, because the two contestants most discomforted by them were ultimately picked as the winning couple.
Elsewhere on the indecency front, the Supreme Court may decide Feb. 29 whether to hear the FCC's appeal of a Second Circuit Court of Appeals ruling that the FCC's enforcement of fleeting profanities was "arbitrary and capricious."