Fox Broadcasting Co. and affiliates of the Fox Television Network are telling the Federal Communications Commission that its indecency regulations are unconstitutionally vague and that the commission must rescind its proposed $1.18 million fine against stations that aired an episode of Married by America.
The episode featured bachelor and bachelorette party goers licking whipped cream off a stripper’s naked body and a male stripper putting a woman’s hand down his pants.
Married by America was a reality show that allowed viewers to vote on a suitable match for five unmarried contestants.
In an appeal to the Oct. 12 proposed fine, Fox laywers said the FCC had no right to punish the stations, citing the Supreme Court’s recent decision to strike down Internet pornography restrictions. In that case, the justices found the government’s indecency definition in the Internet case to be too vague. Fox lawyers say the broadcast indecency definition is “virtually identical.”
The commission’s indecency standard “has never provided broadcasters any ability to discern which content is lawful in the eyes of the commission,” according to Fox.
The most recent example of the uncertainty, they said, is ABC affiliates’ recent refusal to air an uncut version of the film Saving Private Ryan because of their inability to predict whether they would face a fine for swearing in soldiers’ dialogue.
In case the constitutional argument fails, the Fox lawyers added that the episode didn’t come close to violating the FCC’s indecency standard anyway. All nudity was obscured or pixilated and the show did not dwell on any material some might find offensive, they said.
Finally, the scenes in question were not intended to shock or pander to the audience but were integral parts of the contest storyline.
Fox’s 168 O&Os and affiliates each face a $7,000 levy if the FCC upholds the fine.