By Frank Ahrens
Washington Post Staff Writer
Saturday, April 15, 2006
The four major television networks and more than 800 affiliated stations have sued to overturn recent indecency rulings from the Federal Communications Commission, saying the government "overstepped its authority" in the March judgments.
The lawsuits -- filed in several federal courts around the country by ABC, CBS, NBC, Fox, their affiliate stations and the Hearst-Argyle Television Inc. chain Thursday and yesterday -- could become the test case long awaited by broadcasters who seek to challenge the government's ability to police the airwaves, the broadcasters acknowledge privately.
"We strongly believe that the FCC rulings issued on March 15 that we are appealing today are unconstitutional and inconsistent with two decades of previous FCC decisions," the networks said in a joint statement.
In March, the FCC issued a number of rulings, dismissing some of the more than 300,000 viewer complaints it had received about television shows, proposing fines against some shows and pronouncing episodes of other shows indecent, though the agency proposed no fines.
The FCC found that an episode of CBS's "The Early Show," several episodes of ABC's "NYPD Blue" and two music awards shows on Fox violated the agency's decency standards for broadcasting indecent language.
For example, Fox's Dec. 9, 2002, broadcast of the Billboard Music Awards including singer Cher using obscenity associated with sexual intercourse. In 2003, the FCC initially ruled that the same word uttered by U2 frontman Bono on live television was not indecent. The agency reversed itself the following year after lawmakers and advocacy groups complained, changing its rules to prohibit such language under almost all circumstances regardless of context.
All the shows named in the lawsuit aired before the agency's "Bono" decision. Therefore, the FCC ruled that the shows were indecent but decided it could not fine the stations for broadcasting them.
"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," the network statement reads.
Under previous Republican chairman Michael K. Powell, the FCC proposed a greater dollar amount of fines than under all previous chairmen combined. Current Republican Chairman Kevin J. Martin hired a special consultant on indecency -- Penny Nance, formerly a board member of the conservative Concerned Women for America -- and has vowed to stay tough on indecency. He has a strong ally on the commission in Democrat Michael J. Copps.
In an indecency finding, the FCC proposes a fine and the broadcaster can appeal it to the agency. If the FCC upholds its ruling, it issues what is called a "forfeiture," meaning the broadcaster is obligated to pay. But because there was no fine proposed in these cases, the broadcasters had to appeal directly to the courts.
The FCC prohibits the broadcasting of material related to sexual or excretory functions on over-the-air radio and television--cable and satellite are outside the agency's purview--between 6 a.m. and 10 p.m., or when children are most likely to be in the audience.
The government's ability to police the airwaves rests on two Supreme Court decisions -- the most recent of which is nearly 30 years old and narrowly carried by a 5-4 vote of the justices.
Broadcasters argue that the decency rules were put in place at a time when viewers had a choice of only a few television and radio stations and it made some sense that the government should regulate content.
But now, the broadcasters argue, viewers can choose from hundreds of stations and have technology such as the V-chip and other tools to block potentially offensive material.
Further, the broadcasters say, cable and satellite channels have an unfair advantage because they can show racier content than the networks, which has drawn viewers away. The major networks' prime-time audience has eroded steadily for two decades, and they blame in part the success of prime-time programs such as "The Sopranos," which includes language and nudity that the networks cannot broadcast.
Separately, CBS appealed more than $4 million in fines against its television stations over a broadcast of the 2004 Super Bowl halftime show and an episode of the CBS drama, "Without a Trace."
The FCC said yesterday that it would consider CBS's appeal, but that the network's argument about the Super Bowl incident -- in which one of singer Janet Jackson's breasts was briefly exposed -- "runs counter to commission precedent and common sense."