The Big Four networks, minus ABC, have asked a New York federal appeals court not to delay their court case against four FCC profanity rulings by letting the FCC take a second look at those decisions.
Five days before the case was to get underway, The FCC last week asked the court to put off initial briefs and arguments while it reviewed the March decisions against four broadcasts.
The four findings were against ABC’s NYPD Blue (the BS-word), two Fox Billboard Music Award Broadcasts (f-words and s-words) and the Early Show (a BS variant). The Early Show finding is particularly troublesome since it is a news program, which has historically gotten more leeway for the "heat of battle" type of language or video.
CBS, Fox and its affiliates are also opposing the FCC request for review, while ABC (see below), its affiliates and the affiliate groups for both CBS and NBC are supporting it.
All three networks told the federal appeals court for the second circuit Friday that the FCC is just trying to delay judicial scrutiny of its "supposed" indecency guidance, which both networks and stations argue is not much guidance at all and is likely unconstitutional.
According to papers filed with the court, NBC points to the fact that the FCC has not ruled on two-year-old network petitions challenging and asking to stay enforcement of its decision in 2004 that a "f-ing brilliant" from singer Bono on NBC’s Golden Globes was indecent. The FCC did not fine NBC because that finding was a change from past commission rulings that fleeting profanities were not indecent. But the commission was essentially serving notice.
The commission similarly did not issue fines in the four March profanity findings under court review, since those occurred before the Bono decision.
All three also argued that if the court grants the FCC’s request to let it review the decisions, and hear station arguments that they were not indecent, the FCC should stay enforcement of that toughened profanity policy until after the FCC’s review.
They also say that, if the court does not grant the stay, it should change the date for filing opening briefs in the case from July 12 to five business days after the court rules.
CBS says the FCC has had plenty of time to get its act together on a profanity policy and that the FCC’s request to delay the court case is unnecessary.
"Granting the remand and stay request would disrupt the parties’ efforts to work with Second Circuit staff and counsel to establish the earliest possible briefing schedule and arguments date," said CBS in its filing to the court.
The networks say they would not have opposed the FCC request for another look at the rules if the commission had at the same time agreed to suspend its tougher policy on "fleeting profanities, "which were not held to be indecent until the Bono decision. The FCC "categorically refused" to stay the rules, said CBS.
CBS argues that without a stay, broadcasters are in a "particularly perilous" situation during the remand period--the FCC has asked for 60 days--"If, for example, a U.S. solider were to utter a profanity during news coverage of the War in Iraq...CBS stations would be potentially liable for tens of millions of dollars in fines and their licenses would be at risk," says CBS, pointing to the new law that boosts the top indecency fine from $32,500 to $325,000.
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 occurred 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, it also did not give stations an opportunity to respond.
The FCC now says it wants to give them that opportunity, and delay the court challenge for at least a couple of months.
CBS says it is not disputing the facts of the Early Show broadcast--a "bullshitter" slipped in--nor taking issue with the procedure. Leaving only the facts at issue, essentially the same ones that have been at issue since CBS and others raised them two years ago in calling for reconsideration of the indecency finding against Bono’s f-word on NBC’s Golden Globes, the decision that upped the ante on cussing.
CBS points out that, while the FCC relied on its Golden Globes decision that an f-word adjective was indecent as precedent in the four profanity findings at issue, it has yet to rule on the challenges to that initial decision.
CBS says the FCC’s silence on those petitions, combined with its refusal to stay enforcement during the remand and its boosted fine powers, is a recipe for chilling speech while the commission attempts to evade court review.
Fox and its affiliates joined CBS in opposition to the profanity findings, two of which were for f-words and s-words on Fox’s Billboard Music Awards.
Fox called it a "transparent attempt by the FCC to shield its new indecency enforcement regime from judicial review" and "prolong its unconstitutional suppression of broadcasters’protected speech."
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, but it could also give the FCC a chance to better explain itself and buttress its case in court.
The networks and affiliates were all on the same page in April when they took the unprecedented step of joining in the court challenge, saying they believed "several of the FCC rulings issued on March 15 are unconstitutional, and find them inconsistent with two decades of previous FCC decisions. In filing these court appeals we are seeking to overturn the FCC decisions that the broadcast of fleeting, isolated—and in some cases unintentional—words rendered these programs indecent."