Fox pulled out all the stops in asking a federal court to throw out the Federal Communications Commission's proposed indecency fine against Married by America, including arguing that the FCC's indecency-enforcement authority is confined by law to words, not images.
Fox and two other Fox-affiliate owners filed a motion to dismiss the complaint with the U.S. Court of Appeals for the District of Columbia, according to a copy of the filing obtained by B&C.
In the motion, Fox and company ticked off one-dozen or so reasons why the FCC was off base in fining it for the show. They included that the commission failed to allege that Fox broadcast the show knowing it was indecent. In fact, Fox said, it wasn't indecent -- another reason it offers for dismissing the case.
But Fox also argued that the FCC's indecency-enforcement power under statue applies only to indecent "language" since that is what the statute says. The relevant statute, the company added, prohibits broadcasters from using the airwaves to “utter ... indecent ... language, not to transmit indecent pictures."
But just in case that argument doesn't fly, Fox added that the show was not indecent anyway since the FCC did not allege that it depicted any sexual activity, and what nudity there was had been pixilated.
But wait, there's more: Fox added a number of First Amendment arguments, including that a ban on indecent speech is unconstitutional because the availability of the V-chip/ratings system provides a remedy less burdensome to speech; that the FCC's definition of indecency is unconstitutionally vague; that the government has not found any compelling interest in banning the programming at issue; and that indecency regulation is too subjective.
With the five-year statute of limitations running out on the complaint against the April 7, 2003, episode of the long-canceled reality show, the FCC in February issued a $91,000 fine against 13 Fox stations for an episode that showed some pixilated body parts.
Fox refused to pay the fine and appealed the decision, calling it arbitrary and capricious. The FCC denied the appeal on a technicality, which Fox also called arbitrary. By failing to pay the fine, Fox set up the federal court showdown.
It has been a busy week on the indecency front. Earlier this week, the FCC, with the Justice Department actually doing the arguing, weighed in with the Supreme Court in defense of its decision to find two Fox broadcasts featuring the swearing duo of Cher and Nicole Richie indecent.
There was still no word from the other indecency front, the Third Circuit Court's of Appeals' pending decision on CBS' appeal of the Janet Jackson Super Bowl reveal.
An FCC spokesman had no comment on the Fox filing at press time.