No, the commissioners aren't swearing on television between 6 a.m. and 10 p.m., but NBC says that the FCC's profanity findings against phrases like Cher's "Fuck 'em" on Fox's Billboard Awards or Bono's "Fucking brilliant" on NBC's Golden Globes, both cited by the FCC, are misapplied and contrary to "its own standard, common sense, conventional wisdom and ordinary usage."
In its brief to the Second Circuit Court of Appeals in New York in the broadcaster court challenge to that new FCC profanity enforcement policy, NBC says the FCC decision should be reversed and that "no reasonable observer could actually conclude that Cher was exhorting the audience to have 'sexual activities' with those critics, or that her comment related somehow to sexual organs."
The FCC has said that the word "fuck" has an implicit sexual meaning that gives it its power as an intensifier.
NBC says it is not saying a "properly designed indecency regime could never bar the repeated broadcast of expletives used as intensifiers" but that the FCC cannot "transform a standard that expressly requires material to 'describe or depict' sex into a dragnet for words that neither depict nor describe sexual or excretory activity."
NBC also argued that the FCC's decision is invalid under the Chevron test, which holds that an appeals court must first determine if the will of Congress was clear in a statute, and if so, that ends the discussion. NBC argues, as it did in its initial brief to the court, that Congress clearly intended to be blasphemous and that the FCC cannot arbitrarily change the definition to fit its regulatory leanings.
Echoing Fox's filing Wednesday, NBC also said the indecency-enforcement policy was arbitrary and inadequately explained
Broadcasters make their oral argument before the same court Dec. 20.