Fox and its affilates joined CBS Friday in asking a New York federal appeals court not to let the FCC take another look at four profanity findings it issued last March. Two were for f-words and s-words on the Billboard Music Awards on Fox.
Fox called it a "transparent attempt by the FCc to shield its new indecency enforcement regime from judical review" and "prolong its unconstitutional suppression of broadcasters'protected speech."
Networks and affiliate groups appealed those profanity findings to the New York court, with opening briefs due July 12. The FCC says it wants the court to hold off on hearing the case and give it 60 days to review the decisions (see CBS and ABC profanity filing stories elsewhere on broadcastingcable.com).
The FCC said it is looking to remedy a procedural mistake it made in issuing the four profanity findings. It did not impose fines, since the broadcasts occured before it had announced its intention to find "fleeting profanities" indecent, a break with past precedent. It also says it did not plan to hold the findings against the stations at renewal time.
But because it did not issue a notice of apparent liability, stations did not have an opportunity to respond. The FCC now says it wants to give them that opportunity, and delay the court challenge by the networks and stations for at least a couple of months.
Like CBS, Fox argues that neither it, nor any other of the petitioners who challenged the FCC rulings, is objecting to the procedure the FCC employed in issuing the orders, calling the FCC's "retext for remand wholly contrived."
Fox points out, a point echoed by CBS, that if the FCC had any intention of reconsidering its decision to crack down on fleeting profanities, it would act on the petitions for reconsideration of the Golden Globes Order of 2004, when it reversed itself and said that adjetival, inadvertent profanities were indecent. "Indeed, it is little short of astonishing that the commission would present its motion without even mentioning its inexplicable delay in responding" to the Golden Globe petitions.
While the FCC has not ruled on those, broadcasters could arguably have taken the FCC to court as well, since Bono was a similar, no-fine order.
While Fox wants the court to deny the FCC request, if the court does allow the remand, the network wants it to stay enforcement of the tougher indecency regime, and either way to delay filing of opening briefs until five business days after it rules, which is expected to be by July 11.
ABC and the ABC, CBS and NBC affiliate groups, plus Hearst-Argyle, have all weighed in on the side of the FCC.
In part, the commission move is seen as a response to broadcaster complaints to Martin at the NAB convention in April about their inability to respond to the findings.