Networks Say Live TV Is at Stake in Fox Decency Case

Paris Hilton, left, and Nicole Richie at the 2003 Billboard Music Awards. Fox TV has been fined for Richie's use of a profanity.
Paris Hilton, left, and Nicole Richie at the 2003 Billboard Music Awards. Fox TV has been fined for Richie's use of a profanity. (By Joe Cavaretta/AP)
By Frank Ahrens
Washington Post Staff Writer
Saturday, April 5, 2008

Major television networks are privately saying that if they have to worry about a fine every time someone utters a profanity on air, they may have to stop real-time broadcasting of live events such as the Academy Awards and Grammys.

At the same time, the head of the Federal Communications Commission and parents groups are saying that if the Supreme Court removes the threat, ABC, CBS, NBC and Fox will seize the opportunity to make the airwaves more coarse and profane.

The issue has come to a head because the high court is taking up broadcast indecency for the first time in 30 years. A ruling either way will have lasting repercussions on the networks and viewers .

The case, FCC v. Fox Television Stations, concerns two Fox programs that violated the FCC's indecency rules by airing profanities. Fox sued the FCC, saying the agency's ruling went against its own indecency regulations for punishing "fleeting," or one-time, use of profanities. A lower court sided with Fox; the FCC and administration appealed to the high court, which said last month it would take the case when it reconvenes the first Monday of October. Arguments might not be heard until early next year.

The case involves live awards shows in 2002 and 2003 that featured, respectively, singer Cher and celebrity Nicole Richie using variations of a profane four-letter word. More recently, actress Diane Keaton used a variation of the same word on ABC's "Good Morning America," and in February, Jane Fonda used a vulgarity for a part of female anatomy on NBC's "Today" show. Neither of the latter two has prompted an FCC fine.

Fox says it seeks a Supreme Court decision that would let the network continue to air live programming without fear of an FCC fine, which can run as high as $325,000 per profanity.

"A positive ruling from the court would simply acknowledge that no system is perfect and must allow for a small margin of human error," Fox spokesman Scott Grogin said.

With the networks having set up elaborate and costly systems to try to catch offensive language and images in live shows before they reach viewers, one executive said that if the court finds for the FCC, the networks may have little choice but to stop airing events live.

"I don't know how we could police it any more," said the executive, who spoke on the condition of anonymity for fear of angering the FCC and possibly endangering the network's station broadcast licenses. "I think you would drastically reduce if not eliminate live programming."

With the potential of fines reaching into the millions of dollars, a network may have a fiduciary duty to shareholders to cease most live broadcasts if the court rules against Fox, the executive said. The president's State of the Union address would probably still be safe to air live, the executive said, but a show like "American Idol" might not.

The head of an influential parents group and the chairman of the FCC said the networks are essentially asking the court to approve more vulgarity on the airwaves.

Tim Winter, a former NBC executive, is now president of the Parents Television Council, which has flooded the FCC with hundreds of thousands of viewer complaints in recent years about risque television shows. He said a pro-Fox decision by the court would start an inevitable decline in programming standards, eventually making shows on the major networks -- ABC, CBS, NBC and Fox -- look and sound more like the R-rated programs on HBO and Showtime.

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