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Fox Calls For Court Review of Standards

FCC Rules Archaic, It Says In Appeal

By Frank Ahrens
Washington Post Staff Writer
Saturday, December 4, 2004; Page E01

Fox Broadcasting Co. is appealing a record-setting $1.18 million fine for airing racy fare on a show called "Married by America," saying the government's indecency rules for broadcast television are unconstitutional because they don't apply to cable and satellite television.

Fox said the show was not indecent, and it argues that over-the-air broadcasters are now treated as "second-class citizens" by a Federal Communications Commission that unfairly holds them but not their rivals to decency standards.

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If the FCC upholds the fine, Fox could take the case to court, creating the first test case against federal indecency standards in a quarter of a century, media lawyers said. The indecency rules are based on a Supreme Court ruling made in 1978 -- well before the widespread use of cable and satellite radio and television, the Internet and technologies that allow parents to block objectionable material. Even some within the FCC have said that the rules are ripe for legal challenge.

"First and foremost, the commission's indecency regulations no longer can withstand constitutional scrutiny," Fox's filing to the FCC reads. "Given the tremendous technological changes that have transformed the modern media environment, the commission simply cannot justify an intrusive, content-specific regulation of broadcasters."

Executives at News Corp, which owns Fox, declined to comment, saying they wanted the filing to speak for itself. Executives at the other networks also declined to comment; both CBS and NBC have high-profile indecency appeals before the FCC. CBS is appealing a proposed $550,000 fine spurred by Janet Jackson's Super Bowl halftime show in February and NBC is appealing an indecency ruling caused by singer Bono's use of obscenity during a 2003 awards show.

"This is a potential test case in the way that Bono and the Super Bowl are all potential test cases," said Kurt A. Wimmer, a media lawyer for Covington & Burling who is representing some Fox affiliate stations fined for "Married by America." (Wimmer also has done work for The Washington Post on unrelated matters.)

On April 7, 2003, 169 Fox-owned and affiliate stations broadcast an episode of the show, since canceled, that featured whipped-cream-covered strippers at a bachelor party and digitally obscured nudity.

In October, the FCC found that the show's contents violated the agency's indecency standards, which prohibit broadcast of sexual or excretory matter that is "patently offensive" between 6 a.m. and 10 p.m., when children are most likely to be watching. The agency fined each of the 169 stations $7,000, Fox's first indecency fine. (The FCC is investigating a 2003 Fox broadcast that included expletives uttered by actress Nicole Richie.)

The FCC's rules cover over-the-air television and radio broadcasts but not programming that is transmitted via cable or satellite networks, based on the notion that the broadcasts depend on the public airwaves while customers chose to subscribe to cable or satellite services. The same is true of radio: Pay satellite radio networks XM and Sirius are exempt from federal decency standards that their free, over-the-air AM and FM rivals must obey.

If Congress attempted to extend broadcast indecency standards to cable and satellite, lawmakers would face several First Amendment obstacles, media lawyers say. If, on the other hand, Congress attempted to roll back decency standards on broadcast, they likely would face significant political pressure from parents groups and socially conservative organizations.

Broadcast television has been losing audience share to cable and satellite networks steadily since their inception, and cable now commands the larger aggregate prime-time audience. Viewers make little distinction between channels 4 and 40 on their remote controls, and few probably realize that the FCC has authority over only the broadcast channels they watch -- typically, three to 10 channels on a 200-channel menu.

"Indeed, the massive expansion of cable and satellite video programming, together with the advent of the Internet, renders obsolete the second-class treatment of broadcasters under the First Amendment," the Fox filing reads. "These technological and marketplace changes make clear that regulation of indecency, which the commission itself recognizes is constitutionally protected speech, cannot possibly survive strict scrutiny review."

The FCC's power to fine broadcasters for indecency was upheld by a 1978 Supreme Court case, FCC v. Pacifica Foundation, which concerned a George Carlin comedy routine filled with obscenities that was broadcast in the afternoon on New York's Pacifica radio station.

"I think Pacifica is pretty wobbly," Wimmer said. Some of Fox's affiliates are arguing that they were not responsible for the broadcast because they did not see it ahead of time. In the Janet Jackson case, the FCC fined only CBS's 20 owned stations, not the more than 200 affiliates, judging that the affiliates had no way of knowing what would happen during the halftime show.

Andrew Jay Schwartzman, president of the Media Access Project, an advocacy group that has challenged the FCC on a number of issues, said Fox's appeal of the "Married By America" fine is "certainly setting up a challenge to the FCC's Pacifica case."

"This is clearly heading for a series of confrontations," he said.

© 2004 The Washington Post Company