The broadcast networks, with the exception of ABC, are taking aim at the FCC's stepped-up indecency/profanity-enforcement regime, beginning the court battle that could wind up with the Supreme Court getting another crack at the commission's code.
The ammunition was a series of opening briefs in networks' court challenges to four profanity rulings the FCC issued last March, though it has since rescinded those against CBS and ABC while upholding two against Fox's Billboard Music Awards.
ABC sat this one out, since its NYPD Blue profanity finding was reversed on procedural grounds. CBS, which also filed its opening brief in its court challenge to the Janet Jackson fine, decided to stay in the fight even though the FCC reversed its ruling that a profanity on the The Early Show was actionable, saying the commission should have accepted the network's defense that the program was a public-affairs show.
CBS' move was not simply a show of support for Fox. The FCC's decision to reverse the two profanity rulings has been appealed by the Parents Television Council, so until it becomes final, CBS is taking no chances.
Neither is ABC, for that matter. Although it did not file a brief and will not participate in oral arguments, it reserved the right to jump back in if the FCC alters its decision again. Oral arguments could come as early as late December, though that would be warp speed for federal appeals courts.
With an assist from Hollywood and NBC, Fox and CBS told the U.S. Court of Appeals for the Second Circuit in New York that the FCC's decision to start cracking down on profanity was illegal, unconstitutional, arbitrary, capricious, chilling and just about every other printable name in the book.
NBC, in a lengthy brief filed Friday, took direct aim at indecency enforcement. Its argument could help set the stage for a broader challenge to the FCC's crackdown on content.
Curse like sailors
For its part, the FCC continued to paint networks and programmers as hedonists who curse like sailors.
"By continuing to argue that it is okay to say the f-word and the s-word on television whenever it wants," the FCC said in response to the flood of court filings, "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."
So do the networks, actually. CBS in its filing took pains to point out that it was simply calling for a return to the kinder, gentler days of indecency enforcement, when an occasional slip of the tongue didn't cause a national crisis. "Contrary to the recent statements by the FCC suggesting we are seeking the right to use expletives at will in our programming," said CBS, "all [we are] seeking is a return to the FCC's previous time-honored practice of more-measured indecency enforcement."
Fox went for the jugular, calling into question the entire indecency-enforcement regime and saying any ban on indecent speech is unconstitutional.
NBC, in its broad swipe at indecency enforcement in general, said that the FCC's basic assumptions about how it can regulate broadcast content have been eroded. It also argued that the commission had redefined "profane" from its original meaning of "blasphemy." It can't do that, the network argued, if Congressional intent is clear.
The FCC will have to give its side of the story by Dec. 6.