By Frank Ahrens
Washington Post Staff Writer
Tuesday, March 25, 2008
In an unusually aggressive step, Fox Broadcasting yesterday refused to pay a $91,000 indecency fine levied by the Federal Communications Commission for an episode of a long-canceled reality television show, even as the network fights two other indecency fines in the Supreme Court.
The FCC proposed fining all 169 Fox-owned and affiliate stations a total of $1.2 million in 2004 for airing a 2003 episode of "Married by America," which featured digitally obscured nudity and whipped-cream-covered strippers.
Fox appealed immediately after the FCC ruling. Last month -- four years later -- the FCC changed its mind, saying it would fine only the 13 Fox stations located in cities that generated viewer complaints about the program. That reduced the fine to $91,000.
Despite the sharp reduction, Fox said it would not pay the fine on principle, calling it "arbitrary and capricious, inconsistent with precedent, and patently unconstitutional" in a statement released yesterday.
Typically, after the FCC determines that a broadcaster is culpable for an indecency fine, the broadcaster pays it -- by writing a check to the U.S. Treasury -- or may attempt to negotiate a settlement, sometimes dragging the process out for years. Sometimes, a broadcaster will take a case to court. Other times, the broadcaster will pay the fine and appeal, hoping for a reversal and refund.
Instead, Fox has asked the five FCC commissioners to reconsider the fine without its having to pay, a move that sets Fox in a two-front indecency war: It is battling the FCC at the agency level on the "Married" fine and in the Supreme Court on other indecency fines levied at about the same time.
Last week, the Supreme Court said it would take up FCC v. Fox Television Stations this fall. The lawsuit filed by the network aims to overturn FCC fines levied in 2002 and 2003. In each case -- live broadcasts of awards shows -- variations of a vulgar four-letter word were uttered on the air.
It is the first time the Supreme Court has taken up the subject of broadcast indecency since its 1978 FCC v. Pacifica Foundation decision, in which the court upheld the agency's authority to fine broadcasters for indecent programming.
The FCC had previously declined to fine television stations for "fleeting," or one-time use of, profanities, but reversed itself in 2004 after initially ruling that the same word, when uttered by singer Bono during a live show in 2002, was not indecent. The decision was followed by a torrent of viewer and lawmaker scorn, and the FCC changed its policy, saying even such fleeting profanities can bring a fine.
The FCC forbids over-the-air radio and television stations from broadcasting "patently offensive" material of a sexual or excretory nature between the hours of 6 a.m. and 10 p.m., when children are most likely to be in the audience.
"We believe in enforcing indecency standards, especially when children are watching," said FCC spokeswoman Mary Diamond.
Fox is owned by Rupert Murdoch's News Corp., a $60 billion company that also owns 20th Century Fox movie and television studios; dozens of magazines and newspapers, including the Wall Street Journal and the New York Post; satellite television networks in Europe and Asia; the MySpace social Internet site; and HarperCollins Publishers, among other assets.