The FCC's new indecency policy of cracking down on cussing "has reached too far and censored too much speech," said Fox in its reply to the FCC's defense of its new policy.
Fox took aim in a filing with the Second Circuit Court of Appeals in New York.
The FCC found two Fox Billboard Awards show broadcasts to be profane, and thus indecent, because they allowed variants of the word "fuck" and "shit" to be broadcast outside of the FCC's 10 p.m.-6 a.m. safe harbor for "indecent" broadcast speech.
Fox argued that neither of the broadcasts would have been found indecent under the previous almost 30 years of FCC indecency policy (1975-2004) and that "without adequate explanation or even acknowledgment, the FCC has abandoned the restrained understanding of indecency that served the public for three decades."
Fox says the FCC's new policy means it can punish "virtually any isolated use of the words," with only "arbitrary exceptions when the word might be justified in context."
The FCC found that Saving Private Ryan's swearing passed muster, for example.
Fox said the FCC has failed to even acknowledge the "magnitude" of that change in policy.
The change dates from the commission's reversal of a staff-level decision that Bono's fleeting and adjectival "Fucking brilliant" comment on an NBC Golden Globes award was not indecent. After Congress pressed it to reconsider that decision, the FCC did and concluded that the utterance was profane and indecent.
Fox's essential message is that the FCC's policy is "incurably arbitrary" and vague and that its targeting of "occasional expletives" is unconstitutional.
As to the FCC's assertion that the V-chip/ratings system is not effective, Fox said that the FCC had already concluded it was by telling Congress, when the system was first adopted, that it met the goal of "achieving an effective method by which the rating system, when used in conjunction with the V-chip technology, will provide parents with useful tools to block programming they believe harmful to their children."
The FCC argued last week that, beyond just having the technology available, which they said has not in practice been the useful tool it was in theory, the government had an affirmative role in protecting kids from content even if their parents weren't going to do it.
Fox will make its oral argument to the court Dec. 20.