Fox took aim at the FCC's entire indecency enforcement regime Wednesday in a filing with the U.S. Court of Appeals for the Second Circuit in New York.
In its challenge to two profanity findings against its Billboard Music Awards program, Fox argued that the FCC's ban on broadcast indecency [between the hours of 6 a.m. and 10 p.m.] "is unconstitutionally vague," calling it identical to the indecency restrictions in the Communications Decency Act--which applied to online content--that the Supreme Court struck down.
The FCC has argued that it is using broadcasters' own general reluctance to air profanities, even after 10 p.m. when it is protected from FCC indecency enforcement, to bolster its definition of community standard.
Fox calls that meritless, arguing instead that "just because networks internal standards establish a buffer between what they will broadcast and what is illegally indecent does not mean the FCC can occupy that buffer zone and proclaim it to be the limits of contemporary community standards."
FCC spokesman David Fiske responded: "
"By continuing to argue that it is okay to say the F-word and the S-word on television whenever it wants, Hollywood is demonstrating once again how out of touch it is with the American people. We believe there should be some limits on what can be shown on television when children are likely to be watching."
Like CBS in its filing, Fox argues that the FCC's new policy of cracking down on fleeting and isolated expletives is arbitrary because its enforcement policy "provide[s] no guidance to broadcasters as to what speech is prohibited and what speech is permitted."
Ironically it is that lack of guidance that prompted the FCC to release the four profanity rulings last March, including the two against the Billboard broadcast--without any fine or penalty attached, arguing that it was trying to give broadcasters a better idea of what it would find indecent going forward.
But broadcasters argue the FCC's policy is no clearer, particularly after the FCC rethought the initial order on remand from the court and eventually reversed itself on the profanity findings against CBS and ABC, while upholding the Fox findings.
"The FCC's utter failure to explain its departure from its prior, restrained enforcement policy--and the resulting confusion about what is and is not permitted--requires that the remand order be set aside," said Fox.
CBS and NBC are joining Fox in fighting the FCC's remand, while ABC has decided to sit it out after the finding against NYPD Blue was reversed, though essentially only the procedural grounds that the complaint did not come from a Midwest market where the broadcast (10 p.m. Eastern, 9 p.m. Central) would have been indecent. Parents Television Council has challenged that, saying the FCC ignored complaints from viewers in the Central time zone.